Select Committee on European Union Forty-First Report


The European Council
Box 5

The European Council

Article 20

1. The European Council shall provide the Union with necessary impetus for its development, and shall define its general political directions and priorities. It does not exercise legislative functions.

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 Union Minister for Foreign Affairs 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 European Commissioner. When the situation so requires, the President shall convene a special meeting of the European Council.

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

137. We commented in our earlier report[61] that the draft Treaty's provisions regarding the European Council were a significant development. The Foreign Secretary has told the House of Commons that "national Governments should be seen to be setting the agenda of the EU with the European Council setting the EU's priorities…[The Treaty] puts the European charge of the Union's political direction"[62]. We examine in this chapter how the provisions for the European Council will operate.

138. We were particularly concerned in our earlier report that enhanced powers of the European Council need to be matched by increased transparency and accountability. In its response the Government made clear that they support "efforts to increase the democratic credentials of the Union" and looked to us to make proposals[63].

President of the European Council

Box 6

The European Council Chair

Article 21

1. The European Council shall elect its President, by qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end his or her mandate according to the same procedure.

2. The President of the European Council:

·  shall chair it and drive forward its work,

·  shall ensure its proper preparation and continuity in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council,

·  shall endeavour to facilitate cohesion and consensus within the European Council,

·  shall present a report to the European Parliament after each of its meetings.

·  The President of the European Council shall at his or her level and in that capacity ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the responsibilities of the Union Minister for Foreign Affairs.

3. The President of the European Council may not hold a national mandate.

139. It is widely (but not universally) accepted that the present system of rotating presidencies is already strained and would be unviable in a Union of 25. A key development in the proposals regarding the European Council is the proposal for a full time president, or chair, an idea which we believe originated in the United Kingdom. In our previous report we noted that this proposal was "clearly intended to alter the institutional balance of the European Union" and we sought further clarification from the Government[64]. We examine further here the arguments for and against the post; what the job might involve; and who might be eligible to apply.

The job description

140. Peter Hain identified the following responsibilities of the new post (Q61):

·  chairing and taking forward the European Council's work

·  "providing a much more serious co-ordinating role than can be done by a job that changes every six months"

·  to increase Europe's global influence

·  to be the person "to whom the foreign president pick[s] up the phone"

·  co-ordinating and preparing the work of the General Affairs Council

·  co-operating with the Commission President

·  to be accountable to and speak for the governments.

141. In addition, the Government has made clear:

·  the post's role is largely that of the existing rotating presidency[65]: under the current TEC the Council is responsible for organising the order of the rotating Presidency by unanimity[66].

·  the post will have a role in co-ordinating the sectoral councils.

142. The post is to be held for two and a half years, renewable once. The Commission wants the term to be limited to one year.

Arguments for and against the new post

143. The Foreign Secretary has said "There has always been a president - this proposal is not about further accretion of powers at the centre"[67]. The Government has advanced a number of detailed arguments for why this change is necessary[68]:

·  "to give the leadership that the Heads of Government, including ours, can have confidence in and that that person is accountable to"

·  to provide "much greater capacity to give direction and momentum to the EU's Agenda, for example on the Lisbon process"

·  to improve the stability, coherence and continuity in the Council

·  more permanency means co-ordination of the EU in a more strategic and long-term manner

·  to ensure proper preparation and presentation of policy

·  the current end of term rush every six months would end, improving efficiency; and time spent on handovers every six months would be better employed (although we note that it is proposed that some system of rotation is expected to remain for the Council of Ministers, thus weakening this argument if it applies only to the European Council).

144. Peter Hain also stressed that the new role would enhance democratic legitimacy: "the job will now be elected, full-time for up to five years, and I think people will then see a change of accountabilities because governments will elect that person right the way down through governments, national parliaments to the citizen, and I think it will be better for democratic legitimacy" (Q 61). M Haenel too noted that the new President would be stable and identifiable (Q 5).

145. Some of the smaller Member States have, however, opposed the proposal, fearing that their influence might be lessened or perhaps, according to Peter Hain, because they were "more federalist-minded" (Q 23). He noted, however, that the Danish and Greek Presidencies had changed their minds, moving from opposition to the principle of a full time chair to supporting it "when they actually had to do the job" themselves during their recent presidencies (Q 63).

146. Our Government has aimed to reassure this House about some of these concerns: "The chair is designed to add coherence and continuity and not to lock in the interests of any particular Member State or States"[69]. The Minister stressed that the post was to "bring great continuity to the Union's actions and ensure that the agenda decided upon by national states is kept at the forefront of its operational priorities"[70].

147. From a different perspective, the Brethren expressed concerns in evidence to us that there were insufficient safeguards to prevent "a charismatic incumbent from exceeding his mandate" (p 22).

148. Few details are available about the administrative support for the post. We recommend that the Government clarify whether this would be drawn from the Council secretariat, or whether a cabinet would be created and if so what the presentational effect of that would be given the concerns expressed about the potential influence of the post.

The job title: a president or a chair?

149. We suspect that some of the suspicion about the proposed post might be connected with the term "President" which is used in the text of the Article. The heading, however, refers to the "Chair" and the verb "chair" is also used in the Article. These words, in English give a clearer sense of what is proposed, although in each case in the French text the words Président and préside are used. We understand that the term "chair" in this sense has no equivalent in French but we recommend that the IGC amend Article I-21 so that it consistently adopts, in the English text, the term "chair". This would made the functions of the post clearer. For the purposes of this report, however, we continue to use the term President as that is in general use in discussions of the draft Treaty.

Candidates for the job

150. Peter Hain also shed some light on who the candidates for the post might be, a matter on which we have had concerns. He told us "most people see it as being a former Head of Government, although an explicit requirement for that in the original draft was taken out, with my support actually because you might find somebody like Javier Solana, for example, who enjoys the confidence of member governments because when he was Secretary General he was so good for the job" (Q 61).

151. Others were concerned that the post might be open to someone who was not a former Head of Government, raising the possibility that the Commission President might chair the European Council. It was suggested to us that this would lead to a massive concentration of power in the hands of one individual[71].

152. We recommend that the earlier wording be re-instated to make it clear that the postholder cannot hold office in another institution at the same time as chairing the European Council.

Conclusion: the chair should be supported

153. Some may be concerned that there is no opportunity for citizens directly to elect the President of the European Council. It might be argued that this is an opportunity missed to bring the Union closer to the citizens and to make it more democratic and accountable. It is, however, a consequence of the fact that the European Union, a union of Member States, is partly intergovernmental and partly supra-national that some of the normal attributes of a democratic state, including the ability of citizens to remove a government that displeases them, do not apply.

154. We have previously expressed reservations about the post of President of the European Council. We note that the Government, however, has consistently supported this proposal. We also note the Government's continued efforts to flesh out the functions of the post and to clarify what kind of person will be eligible to hold it. We nevertheless remain concerned that the detailed functions of the post, set out so briefly in the draft Treaty, have not been thought through. We would welcome more details on the precise role and functions of the European Council President, including a clearer definition of the tasks to be undertaken in the long-term.

155. We also understand the force of the arguments of some Member States that they might lose influence by never having a guaranteed turn at the Presidency. In our view, however, these concerns will be met if all Member States are satisfied that there will be fair and equitable access to the post; and that they have assurances that the interests of all Member States will be represented in other ways, including, for example, by the proposed system of annual rotation among the presidencies of other Council formations (as proposed in Article I-23(4)); by a system of team presidencies ensuring a spread of Member States taking the chair across Councils; and by open access to Commission posts.

156. France and Germany in their joint submission to the Convention[72] called for the President of the European Council to be elected by a majority vote in the Parliament followed by approval by QMV by the Council. However, the draft Treaty does not include any role for the Parliament in this appointment. On the other hand, Article I-21 provides for the President to present a report to the European Parliament after each meeting of the European Council. As a contribution to democratic accountability, we recommend that Member States' Governments formally deposit the President's reports after each European Council for scrutiny by national parliaments in accordance with their established procedures. We accordingly propose that the regular statements to Parliament after each European Council be supplemented by an annual debate in each House on the priorities of the Union.

157. We also remain concerned that more needs to be done to ensure that the process by which the post of European Council chair will be filled will be transparent and accountable. As a contribution to transparency and legitimacy, we would welcome a clear and agreed statement by all Member States at the IGC on the process of choosing the Council chair.

158. Subject to a satisfactory outcome on these points at the IGC, we would support the post of chair of the European Council as a contribution to a more effective Union.

Procedures in the European Council

159. We have previously queried[73] the draft Treaty's provision that decisions of the European Council shall be taken by consensus (as opposed to unanimity which applies at present). The Government's response[74] helpfully clarifies which areas are not to be subject to agreement by "consensus" (and specifically indicates that the draft treaty provides for unanimity in CFSP matters (Article I-39 (7)) but sheds no light on what "consensus" itself involves. We accordingly recommend that the Government explains precisely how in practice the process of agreement by consensus will operate.

The Council of Ministers: a Legislative Council

160. The current Treaties do not define or restrict the number of formations in which the Council of Ministers can meet. The new Treaty defines two formations of the Council, the Legislative and General Affairs Council; and the Foreign Affairs Council[75] (Article I-23 (1) and (2)). Other formations would be established by decision of the European Council (Article I-23 (3)). The White Paper (paragraph 5) envisages these councils being chaired by representatives of Member States "on the basis of equal rotation".
Box 7

Legislative Council

Article I-23 (1) paragraph 3

When it acts in its legislative function, the Council of Ministers shall consider and, jointly with the European Parliament, enact European laws and European framework laws, in accordance with the provisions of the Constitution. In this function, each Member State's representation shall include one or two representatives at ministerial level with relevant expertise, reflecting the business on the agenda of the Council of Ministers.

161. The main change from the earlier draft is that the Legislative Council has now been joined to the General Affairs Council. The position, though not always the drafting[76], has become a little clearer. It is not clear from the text whether only the Legislative and General Affairs Council, exercising its "legislative function" as distinct from its "General Affairs function", can consider and enact legislation.

162. If this is indeed the case, other Council formations would no longer be able to consider and adopt legislation or convert themselves into a Legislative Council for that purpose. Ministers from other Council formations would attend the Legislative Council: Article I-23(1) provides that when the Legislative and General Affairs Council is exercising its legislative function "each Member State's representation shall include one or two representatives at ministerial level with relevant expertise, reflecting the business on the agenda of the Council of Ministers".

163. The Government has taken a cautious approach to the notion of a Legislative Council. In its Explanatory Memorandum of 2 June 2003, the Government stated that it "remains unconvinced of the case for a Legislative Council". It could lead to better co-ordination of legislation but the Government were "not persuaded that the Council's legislative and executive functions could easily or logically be separated".

164. In its later (24 June) Explanatory Memorandum[77] the Government, while acknowledging that there were some merits in the proposal to create an over-arching legislative role for the General Affairs Council, remained unconvinced that it was the most effective way forward. The Government argued: "We would not want to duplicate the work done in Sectoral Councils".

165. The Government also recognises that it is not always easy to separate the executive and legislative functions of the Council. The Government would press for the proposed Legislative Council to be the subject of further consideration in the IGC.

166. Peter Hain saw "a very compelling argument" for the Legislative Council in that Europe's legislating would be done in public. He reminded us (Q23) of the genesis of the proposal for a Legislative Council:

"The idea ….[was] promoted most actively by Giuliano Amato, Vice-President of the Convention, … all legislation [was] to be negotiated in the sectoral councils but then to come to a new Legislative Council to be finally legislated for and voted on and national country positions declared in public, transparently."

167. The Government nevertheless remained uncertain as to what the proposal meant and it remained contentious in a number of Member States. The Government had objected on the grounds that the proposal would take away the negotiating role of ministers with individual policy responsibility - "those with a real grip on the policy and accountability for the policy." The proposal had accordingly turned into "a kind of … third reading on, say, the Transport Council's negotiated new legislation, for example" (Q 23).

168. We fear that the Legislative Council as proposed could be no more than a rubber stamp, thus undermining the contribution of its open proceedings to democratic accountability. We see no presumption that open and accountable discussion of policy will be secured in this forum or that significant records of deliberations will be made publicly available.

169. If, as we fear, the Legislative Council were simply to endorse the decisions of other Council formations, any public record of its work would be merely formal. The proposal fails to ensure that the Council when discussing significant policy as part of the process of legislating does so in public. There is a risk that the Legislative Council in its present form will do nothing to deliver the openness and transparency required by the Laeken mandate.

170. In particular, we agree with Peter Hain's concerns that the proposed Legislative Council will break the link between final decision making and sectoral expertise. The direct connection to national policy, national decision making and parliamentary accountability would be lost.

171. Peter Hain also noted, however, (Q26) that there was a possibility of greater transparency in the work of sectoral councils: there was "general support for the principle of transparency while legislation is taking place." In our view, this provides the solution to the problem of the Legislative Council. There is no need for a separate Legislative Council to meet in public if each individual council meets in public (and is televised) when agreeing legislation and if a full "Hansard" of proceedings, including details of any votes taken, is published promptly after each meeting. We recommend that the Government seeks to amend the draft Treaty at the IGC to achieve this as a more efficient contribution to transparency and democratic accountability than would seem to be provided by the proposed Legislative Council.

172. We do not, however, underestimate the practical difficulties of distinguishing between legislative and executive functions, and in determining exactly when the legislative function begins. This is relevant not just for identifying the appropriate forum for discussion at ministerial level but also whether that discussion will take place in public (as would be required by Article I- 49 (2), if the ministers were to be considered to be "examining and adopting" a legislative proposal).

173. We also note that some system of rotation is to continue for Council of Ministers formations (in contrast to the European Council). The Government has suggested amending the rotation to provide for a series of four or five rotating chairs for a set period[78]. We would welcome more detail of how this will work in practice. The Government should present a proposal to Parliament on how the complex mathematics of chairing Council formations would work.

The operation of QMV in the Council of Ministers

Passerelle - a bridge too far?

174. As for the operation of the Council of Ministers, there are two important procedural points both concerned with QMV. The first is that the draft Treaty would provide a procedure, the so-called "passerelle" or bridge (in Article 24(4)), to transfer matters from unanimity to QMV[79].

175. Some in the Convention were critical of the provision because the procedure would not require ratification by Member States and therefore infringe the rights of national parliaments. Lord Owen went further: he saw this as unacceptable - a "temporary political unanimity replacing a constitutional requirement for unanimity" (p 39). The Brethren too opposed the provision (p22).

176. Others have doubted that the procedure would ever be used. We note that that was the case as regards the passerelle in Article K9 of the Maastricht Treaty (which would have enabled Third Pillar matters to be transferred to the First Pillar). We consider in Chapter 6 below the case for a passerelle in CFSP.

177. There are safeguards in that using the passerelle would require unanimity and six months consideration. The European Parliament would have to be consulted and national parliaments informed. In spite of these safeguards we oppose the passerelle provision. It could have the effect of allowing the Council to abolish unanimity in certain areas without any substantive involvement of national parliaments. This would both weaken democratic accountability and undermine the role of Member States. It would also weaken public confidence in the stability of the Treaty's provisions, in particular in the division of competences.

178. We note that the Government too is unconvinced by what is proposed and we urge the Government to secure the deletion of this provision at the IGC. The only circumstances under which a passerelle would be acceptable would be if the Treaty itself specified particular articles in relation to which a passerelle could be used. If the Government decides that it could accept such a limited and specifically targeted provision, the onus will be on the Government to satisfy Parliament that the potential negative effects of the procedure in general can be countered in those specific cases.

The calculation of votes in the Council

179. Secondly, the method of calculation of a majority under QMV would change. At present votes for the qualified majority are weighted on the following basis:

(a) France, Germany, Italy, United Kingdom - 10;

(b) Spain - 8;

(c) Belgium, Greece, Netherlands, Portugal - 5;

(d) Austria, Sweden - 4;

(e) Denmark, Ireland, Finland - 3; and

(f) Luxembourg - 2.

Adoption of a measure by qualified majority requires 62 votes in favour.

180. At Nice it was decided that there would be a change in the voting weight to take account of enlargement. These voting weights are more clearly in favour of smaller Member States:

(a) Germany, UK, France and Italy - 29

(b) Spain - 27

(c) Netherlands - 13

(d) Greece, Belgium and Portugal - 12

(e) Sweden, Austria - 10

(f) Denmark, Finland, Ireland - 7

(g) Luxembourg - 4

A majority in Council will require 169 out of a total of 237 votes, cast by a majority of Members. This is equivalent to 71.1% of the vote in the EU 15. The blocking minority will be constituted by 69 votes.

181. Under the draft Treaty a majority would "consist of the majority of Member States, representing at least three fifths of the population of the Union" (Article I-24(1)), combined in the case of CFSP with a two-thirds majority of Member States (under paragraph (2) of the Article). This would mean that three large States could block a measure and it is perceived that the voting power/weight/influence that some States currently have would be diminished. It is reported that Spain, Poland and possibly other States will argue that the new Treaty should stick to the rules agreed at Nice.

182. The draft Treaty provides that Article I-24 (1) and (2) take effect only in 2009. The system devised at Nice (with which the Government is content - see page 33 of the White Paper) will remain until then. By 2009, the Union may have more than 25 members.

183. A dual majority clearly enhances the democratic accountability of the Union by providing a calculation for the weighting of votes which includes both population and states. The dual majority is accordingly welcome.

Co-Decision - the Legislative procedure

184. Since Maastricht, there has been a gradual extension of the use of co-decision such that the Government can argue that, in practice, it is already the standard procedure, although not appropriate for CFSP and JHA matters. The draft Treaty provides for further extension of co-decision: Lord Owen thought the draft Treaty provided for 36 new areas of co-decision (p 37). Indeed, according to Article I-33, it appears that the normal method of agreeing EU laws will be co-decision, which, depending on the number of exceptions, improves democratic accountability by increasing the involvement of the European Parliament.

185. Significantly, decisions taken on justice and home affairs under 'Area of Freedom Security and Justice' in Part III of the draft Treaty will be subject to co-decision. This is an increase in the powers of the European Parliament, which is currently merely consulted both in Title IV and in Third Pillar matters. This is discussed in more detail in Chapter 5 below.

186. The extension of the use of co-decision appears to be where the European Parliament will gain most influence. In previous reports we have welcomed the greater accountability provided by greater use of co-decision, but reinforce our view that this will mean greater responsibility for national governments and parliaments to ensure that they perform effective scrutiny of proposals subject to this procedure.

187. Corresponding provisions accordingly need to be made for national parliaments to scrutinise decisions by their own governments where the European Parliament and Council will be acting together under the co-decision procedure.

188. Two significant obstacles remain to proper national parliamentary scrutiny during conciliation. First we question whether the four week period for conciliation is long enough to allow meaningful scrutiny by national parliaments. A second issue is the lack of provision for publication of documents, particularly as conciliation operates by way of negotiation between the parties rather than by way of a consecutive presentation of views (as is the case, for example, in the way our bicameral parliament operates). The opportunities for outside involvement are accordingly limited.

189. We have previously called for proposals from the Government to improve accountability during co-decision[80] and we would wish to see progress from the Government very soon.

Competences of the European Parliament

190. The draft Treaty contains in Part I the general structure and duties of the European Parliament. The number of Representatives in the Parliament is a maximum of 736, elected for a term of five years.
Box 8

The European Parliament

Article I-19

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

191. Peter Hain told us (Q39) that the Parliament is to have more powers over comitology matters, which we welcome. The Government argued that this would represent a contribution to democratic accountability and transparency[81].

192. The draft Treaty clearly provides for an increase in the powers of the European Parliament, which in turn enhances democracy in the Union. There is, however, a need for increased powers for the Parliament to be matched with increased responsibilities, including the provision of impact assessments on amendments to legislation.

Changes to the Commission

193. The draft Treaty proposes three changes to the Commission. The first relates to the role and election of the Commission President, the second concerns the number of Commissioners and their voting rights, and the third the role and position of the Union Minster for Foreign Affairs. We deal with the first two of these issues here: the Foreign Affairs Minister is discussed in Chapter 6.

The President of the Commission

194. A joint proposal by France and Germany submitted to the Convention, called for election of the Commission President by a majority vote of the European Parliament, approved by the European Council by QMV[82]. A subsequent contribution from Peter Hain and Ana Palacio[83] called for the Commission President to be appointed by QMV in the European Council and approved by the Parliament, essentially maintaining the existing system[84].

195. The draft Treaty reflects the process of the UK/Spanish proposal, enabling the Council to first approve a single candidate by QMV, whilst specifying that a subsequent Parliamentary majority vote is required to 'elect' the candidate. If the candidate does not gain majority approval, the process starts again with another candidate previously approved by the Council.

Box 9

President of the European Commission

Article I-26

Taking into account the elections to the European Parliament and after appropriate consultations, the European Council, deciding by qualified majority, shall put to the European Parliament its proposed candidate for the Presidency of the Commission. This candidate shall be elected by the European Parliament by a majority of its members. If this candidate does not receive the required majority support, the European Council shall within one month put forward a new candidate, following the same procedure.

196. Under the current TEC the President and list of potential Commissioners is "subject as a body to a vote of approval by the European Parliament"[85] before being appointed by the Council acting under QMV. This vote is retained under the draft Treaty[86].

197. "The Commission as a College shall be responsible to the European Parliament"[87] under the draft Treaty and the Parliament is able to pass a censure motion requiring the College to resign, reflecting existing practice in the TEC[88].

198. Under Article I-21 the Parliament has no power over the choice of the Chair of the European Council. Formations of the Council of Ministers will also be decided without the Parliament.

199. The draft proposes that the European Parliament should elect the Commission President. However, the Parliament would only be able to elect the candidate who had already been chosen by the European Council, "taking into account the elections to the European Parliament" (Article I-26 (1)). This proposal is almost identical to the present procedure, apart from the reference to taking into account the election results. Yet Lord Owen argued that the draft Treaty would represent completely unrestrained power for the new President who would have the sole authority to sack Commissioners and set the direction of the Commission. (p 37)

200. The proposal to create a European Council President could have the effect that the Commission President would no longer speak on behalf of the Union on the international stage. The implication is that the Commission, and its President, is intended to focus on core tasks, such a making the Single Market function more effectively.

201. Arguments were advanced in the Convention for securing greater accountability in the election of the Commission President, perhaps by making the post directly elected by the people or by involving national parliaments. There are arguments that a more accountable post will be a stronger one; and arguments the other way that such election would make the Commission President a prisoner of the politics of the day or, if elected by the European Parliament, of that parliament's majority. Involving the Parliament in the election of the Commission President could go against the principle of the separation of powers.

202. M Haenel argued that if the European Parliament elects the Commission President, they would have the right to censure the Commission which would thus be weakened (Q4). It has also been suggested[89] that the Commission President could be elected by the Parliament subject to ratification by the Council.

203. The Committee supports the draft Treaty's provisions for the election of the Commission President. As with the chair of the European Council the apparent lack of direct democratic legitimacy is a consequence of the Union being a union of Member States.

Number of Commissioners

204. In the draft Treaty, each Member State retains a Commissioner, but only 15 would have voting rights (Article I-25(3)). The Article distinguishes these "European Commissioners" from "non-voting Commissioners". In a last minute deal to bring the smaller countries on board, the Convention agreed that the restriction on voting rights would only come into effect in 2009, after the completion of the Commission's next term.

205. We questioned what role there would be for the proposed non-voting Commissioners. We were also concerned to discover how an EU of 25 Member States will be able to function until the proposed changes to the Commission take effect in 2009.

206. Peter Hain told us (Q60) that the intention of the reform was "to give the Commission a much better organisational focus in order to make it leaner and, therefore, more efficient and better at delivery". There was general support for the principle of one Commissioner per Member State, and in order to ensure that the whole of this large body was knitted together properly in any Commission portfolio, it would be extremely useful to have supporting, albeit non-voting, Commissioners to be the link Commissioners to Member States in their particular areas. For example there might be, under the Commissioner dealing with external relations, subordinates dealing with areas such as North Africa. The Government had reservations about the complexity of the procedure for selecting Commissioners in Article 26(2), while M Haenel did not think that equality between states was realistic (Q4).

207. The Commission itself clearly believes that a large Commission can be efficient if re-structured. In its opinion paper[90] the Commission has proposed one Commissioner per Member State each with the same rights and obligations, split into groups with specific portfolios. These groups could take decisions in the name of the whole College. The full College would still discuss sensitive issues and the President of the Commission could also refer certain issues for full College debate. The Commission believes this scheme would retain a full College and solve small country concerns about influence. The Commission criticises the present draft Treaty as complicated, muddled and inoperable on this issue.

208. In general terms it is in the interests of Member States to have a strong Commission within an inter-institutional balance that also gives significant powers to the Member States and to the European Parliament. The Government believes that the draft Treaty rightly preserves the Commission's core strengths of independence and impartiality[91]. The draft Treaty's proposals for the number of Commissioners would, however, by creating two tiers of Commissioners, undermine the important collegiate nature of the Commission.

209. In our view, the draft Treaty's proposals concerning the number of Commissioners are not ideal in enhancing the efficiency or accountability of the Union. Although there is a strong argument against having too many portfolios within the Commission, a bigger Commission need not necessarily be less effective if properly organised. We believe that the Commission's own proposals are intended to solve this problem, although there are dangers in presenting the Commission's proposals as an attempt to form a government for Europe. Such language is unhelpful.

210. On balance, however, we accept the provisions of the draft Treaty. We can also see that the Commission's own proposals might gain support, particularly to meet some of the concerns of smaller Member States about changes to the Council presidency. We accordingly urge the Government to study the Commission's proposal closely and report to Parliament on its practicability.

Other Institutions

The European Court of Justice

211. We are conducting a separate inquiry into the role of the European Court of Justice under the draft Treaty. This will include the power of the Court under Article 230TEC to review the legality of the acts of the institutions which is maintained by Article III-270 of the draft Treaty[92] and in particular the right of individuals to challenge matters affecting their interests. Our report at the end of that inquiry will complement this report: we stress here that adequate access to the Court is of fundamental importance.

The European Central Bank

212. We are also conducting a separate inquiry into the European Central Bank. Our report will be published shortly.

The Court of Auditors

213. The Government clearly wishes the Court of Auditors to remain an institution but to be reformed. We have expressed our support for reforms to the Court (and particularly its size, as one representative for each Member State is already an unworkable system). We accordingly welcome the Government's latest proposals in this regard[93]. It is now imperative that the Government promotes its proposal in the IGC.

Overall conclusion: Reforming the institutions - a more effective Union?

214. The key test in judging the institutional changes proposed by the draft Treaty is whether they enhance the Union's ability to operate effectively and efficiently and whether they contribute to democratic accountability. We stress again that direct democratic legitimacy may well be difficult to obtain as long as the European Union remains a union of Member States rather than a state.

215. We conclude that the proposals for reforming the European Council - and in particular for the reform of the Presidency - meet this test, provided that remaining uncertainties are clarified, and provided that there is adequate accountability to national parliaments. The Commission's own proposals for its reform need further study but the proposals in the draft Treaty are likely to pass the efficiency test. Proposals in the draft Treaty for reforming the European Parliament make a contribution to democratic accountability.

61   21st Report paragraphs 18-27. Back

62   HC Deb 9 July 2003 cols. 1206-7. Back

63   See paragraph 11 of the Government response to our Report on the Institutions printed in Appendix 6 below.  Back

64   21st Report paragraph 27.  Back

65   See paragraph 9 of the Government Response to our report on the Institutions (Appendix 6 below).  Back

66   Art 203 TEC.  Back

67   HC Deb 16 September 2003 col 790.  Back

68   See Q 39; paragraph 50 the White Paper; and paragraph 9 of the Government Response to our Report on the Institutions (Appendix 6 below).  Back

69   Baroness Symons of Vernham Dean, HL Deb 24 June 2003 col 134.  Back

70   HL Deb 9 September 2003, col 152-3.  Back

71   See evidence from Lord Owen, p 36.  Back

72   CONV 489/03.  Back

73   See paragraph 21 of our 21st Report on the Institutions.  Back

74   See paragraph 12 of the Response to our report on the Institutions printed in Appendix 6 below.  Back

75   The Foreign Affairs Council would be chaired by the Union Minister for Foreign Affairs, whose role we consider further in Chapter 6 below. Back

76   Article I-21(2), for example, continues to refer to the "General Affairs Council". Back

77   Explanatory Memoranda are deposited in Parliament and are available from the relevant Government Department.  Back

78   See paragraph 16 of the Response to the Report on the Institutions (Appendix 6 below).  Back

79   The Article refers to moving from a "special legislative procedure" to the "ordinary legislative procedure". Back

80   See paragraph 35 of our Review of Scrutiny of European Legislation (1st Report Session 2002-03, HL Paper 15).  Back

81   See paragraph 11 of the Response to our Report on Articles 24-33; and paragraphs 6-7 of that to the Report on the Institutions (Appendix 6 below). See also paragraph 91 of our Scrutiny Review (note 80 above).  Back

82   "Après l'élection du président de la Commission par le Parlement européen à une majorité qualifiée de ses membres, il est approuvé par le Conseil européen statuant à la majorité qualifiée." CONV 489/03. Back

83   CONV 591/03. Back

84   Art 214 (2) TEC. Back

85   Art 214 (2) TEC.  Back

86   Article I-26 (2).  Back

87   Article I-25 (5), CONV 820/03. Back

88   Art 201 TEC.  Back

89   See HL Deb 9 September 2003, col 191.  Back

90   See note 6 above.  Back

91   See paragraph 23 of the Response to our Report on the Institutions (Appendix 6 below).  Back

92   HC Deb 4 June 2003 col 434W.  Back

93   See paragraphs 4 and 32 of the Response to our Report in the Institutions (Appendix 6 below); and the letter from Peter Hain printed on pages 18-21 below.  Back

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