Select Committee on European Union Forty-First Report



In paragraph 11 of their Report, the Lords' Select Committee concludes that:

We make this report to the House for information. We stress, however, that it is clear that the balance of power in the European Union is going to shift from the Commission in favour of the Member States if the proposals here are adopted. This makes it all the more important that the Treaty makes adequate provision for the role of national parliaments and that all national parliaments effectively hold their own national ministers to account. In addition, steps need to be taken to ensure both accountability and transparency in the work of the Council.

1. The Government welcomes the Committee's Report which provides a further useful contribution to the debate about the work of the Convention. The Government has broadly welcomed the draft Articles on the Institutions. Many elements reflect the Government's thinking on, for example, creating a full-time elected Chair or President of the European Council. However, there are still some elements which need to be addressed.

2. The Government believes that any reform or strengthening of the Institutions must preserve the existing institutional balance, which has served the Union well.

3. The Convention's President, Valéry Giscard d'Estaing, presented the text of Parts I, II and IV of the draft Constitutional Treaty to Heads of State or Government at the Thessaloniki European Council on 19-20 June. In that version, the Institutions Articles can be found as Articles 18-31, in two Chapters. Chapter One - Institutional framework encompasses Articles 18-28; the remaining Articles are in Chapter Two - Other Institutions and bodies.

Article 14: The Union's Institutions

4. The text as presented to the Thessaloniki European Council does not include the European Central Bank or the European Court of Auditors as Institutions. We have no difficulty with the European Central Bank not being an Institution. However, we would prefer the European Court of Auditors to remain an Institution. To withdraw this status could reduce its role and imply a watering down of its independent status.

Article 15: The European Parliament

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. (Paragraph 15 of the House of Lords' Report.)

We would welcome an explanation of this term ("degressively proportional"). (Paragraph 16 of the House of Lords' Report.)

5. The revised draft Article 19 provides for a maximum number of Members of the European Parliament to be 736 rather than the 700 proposed in the initial draft. This represents the number agreed at Nice (732) plus two extra for both the Czech Republic and Hungary, who were under-represented in the Nice figures vis-à-vis Member States with a similar population size. There is a new additional paragraph which reads:

"Sufficiently in advance of the European Parliamentary elections in 2009, and, as necessary thereafter for further elections, the European Council shall adopt by unanimity, on the basis of a proposal from the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles set out above."

6. The Government agrees with the Committee that the European Parliament's ability to scrutinise some subordinate legislation should be enhanced. Draft Articles 27 and 28 of the draft Constitutional Treaty, as submitted to the Thessaloniki European Council, relate to the so-called comitology procedure. They propose a new category of "delegated acts" which aims, inter alia, to give the European Parliament a similar role as the Council in scrutinising a large amount of secondary legislation. The Government supports this move, which would help to increase the transparency of the process and enhance the EU's democratic legitimacy.

7. The Committee asks about the term "degressively proportional". A degressively proportional system would allocate seats in the European Parliament in proportion to the population size of the Member States. The "degressive" element would mean that increasingly larger populations are represented by increasingly fewer additional seats. The draft also makes provision for a minimum of four seats per Member State. The Government broadly welcomes a proportional system, although a final decision would depend upon the ratio of degressivity.

Article 16: The European Council; and Article 16a: The European Council Chair

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. (Paragraph 19 of the House of Lords' Report.)

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. (Paragraph 20 of the House of Lords' Report.)

We would welcome an explanation of this term ("except where provided otherwise, decisions of the European Council shall be taken by consensus"). (Paragraph 21 of the House of Lords' Report.)

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. (Paragraph 27 of the House of Lords' Report.)

8. As noted above, the Government believes firmly that any reform of the Institutions must not upset the existing institutional balance. The proposals for a full-time President of the European Council would strengthen the European Council, in parallel to the suggestions for enhancing the role and working practices of the European Parliament and the European Commission. We have been a strong advocate of having a full-time figure at the head of the European Council; the rotating Presidency system cannot provide the effectiveness required of the Council in a Union of 25 or more Member States.

9. We envisage the role of a full-time President of the European Council being largely that of the existing rotating Presidency. That individual would be elected by Heads of State or Government who are themselves elected by their citizens. By virtue of being a more permanent figure, the President would be able to co-ordinate the work of the European Council in a more strategic and longer-term manner. The Government believes that, in order to fully realise the potential gains in coherence and consistency, the Council President should also co-ordinate the work of the sectoral Council formations.

10. The Government acknowledges the Committee's concerns that some of the detail remains unclear. This will be a matter for the discussions at the intergovernmental conference (IGC).

11. The Government notes the Committee's emphasis on enhancing the accountability of members of the European Council to their national Parliament. We support efforts to increase the democratic credentials of the Union. The precise way in which national Parliaments hold their Governments to account is a matter for each Member State to determine. The Government would welcome any proposals from the Committee about how this might be achieved even better at Westminster.

12. The term "except where provided otherwise, decisions of the European Council shall be taken by consensus" refers to those policy areas where the Constitution specifies that the European Council shall act according to a different rule. This includes unanimity (for example the common foreign and security policy (CFSP)) or qualified majority voting (the appointment of the European Council Chair and the External Representative, and the nomination of the President of the European Commission).

Article 17: The Council of Ministers; Article 17a: Council formations; and Article 17b: Qualified majority

This provision (on the voting system in the European Council) requires clarification. (Paragraph 31 of the House of Lords' Report.)

The Treaty should also provide for a verbatim record of legislative proceedings to be made quickly and readily available. (Paragraph 33 of the House of Lords' Report.)

13. The revised draft Article 23 on the Council of Ministers now reads:

1.  The Legislative and General Affairs Council shall ensure consistency in the work of the Council of Ministers.

When it acts in its General Affairs function, it shall, in liaison with the Commission, prepare, and ensure follow-up to, meetings of the European Council.

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.

2.  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 Minister for Foreign Affairs.

3.  The European Council shall adopt a European decision establishing further formations in which the Council of Ministers may meet.

4.  The Presidency of Council of Ministers formations, other than that of Foreign Affairs, shall be held by Member State representatives within the Council of Ministers on the basis of equal rotation for periods of at least a year. The European Council shall adopt a European decision establishing the rules of such rotation, taking into account European political and geographical balance and the diversity of Member States.

14. As noted above, there remain some outstanding details on which discussion will focus at the IGC. The proposed reforms to the calculating of Qualified Majority would mean that voting arrangements agreed at Nice would be replaced by an alternative system. Under Nice, 321 votes will be distributed amongst the 25 Council members, from 2005. A qualified majority would be formed by 232 votes, cast by a simple majority of states (or two-thirds when not acting on a Commission proposal), with a population lock that the majority must represent 62% of the EU population. This is a triple majority system.

15. The draft Constitutional Treaty proposes replacing this system with a dual majority system. The adoption of any measure would thus be subject to support from a simple majority of Member States representing 60% of the EU population.

16. In line with our support for equality of Member States, we advocate a system of team presidencies in which four or five countries, by rotation, would chair the sectoral councils for a set period of time. The team presidency idea would spread the burden or chairmanship between Member States and provide longer-term continuity, whilst maintaining the important connection between the Member States and the EU that is inherent in the current rotating Presidency system.

17. The Government is not convinced of the case for having a Legislative Council. We recognise that there could be benefits, for example in the better co-ordination of legislation. However, we have concerns that a permanent Minister, based in Brussels, sitting on a Legislative Council, could weaken that individual's link to their national Parliament. That would have negative consequences for accountability. The Government is also not persuaded that the legislative and executive functions carried out by the Council could be separated easily or logically.

18. The Government believes that a new Constitutional Treaty should provide clarity and stability for the EU. We have not supported proposals in draft Article 24(4) for the so-called "passerelle" clause, which would build provision for changes in voting procedure throughout the Treaty.

19. Paragraph 5 of The Protocol on the Role of National Parliaments, annexed to the draft Constitutional Treaty, proposes that:

"The agendas for and the outcome of meetings of the Council of Ministers, including the minutes of meetings where the Council of Ministers is deliberating on legislative proposals, shall be transmitted directly to Member States' national Parliaments, at the same time as to Member States' governments."

20. The Government supports this initiative wholeheartedly.

Article 18: The European Commission; and Article 18a: The President of the European Commission

We are aware of arguments that having a directly elected Commission President would provide a clear link between citizens and the EU but we note that no such provision is made in the draft articles. We also note that the Government is against any enhancement of the role of the European Parliament in appointing the Commission President. (Paragraph 38 of the House of Lords' Report.)

21. The revised draft Article 25 on The European Commission, as presented to the Thessaloniki European Council on 20 June reads:

1.  The European Commission shall promote the general European interest and take appropriate initiatives to that end. It shall ensure the application of the Constitution, and steps taken by the Institutions under the Constitution. It shall oversee the application of Union law under the control of the Court of Justice. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Constitution. With the exception of the common foreign and security policy, and other cases provided for in the Constitution, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements.

2.  Except where the Constitution provides otherwise, Union legislative acts can be adopted only on the basis of a Commission proposal. Other acts are adopted on the basis of a Commission proposal where the Constitution so provides.

3.  The Commission shall consist of a College comprising its President, the Union Minister of Foreign Affairs/Vice-President, and thirteen European Commissioners selected on the basis of a system of equal rotation between the Member States. This system shall be established by a European decision adopted by the European Council on the basis of the following principles:

(a)  Member States shall be treated on a strictly equal footing as regard determination of the sequence of, and the time spent by, their nationals as Members of the College; consequently, the difference between the total number of terms of office held by nationals of any given pair of Member States may never be more than one;

(b)  subject to point (a), each successive College shall be so composed as to reflect satisfactorily the demographic and geographical range of all the Member States of the Union.

The Commission President shall appoint non-voting Commissioners, chosen according to the same criteria as apply for Members of the College and coming from all other Member States.

These arrangements shall take effect on 1 November 2009.

4.  In carrying out its responsibilities, the Commission shall be completely independent. In the discharge of their duties, the European Commissioners and Commissioners shall neither seek nor take instructions from any government or other body.

5.  The Commission, as a College, shall be responsible to the European Parliament. The Commission President shall be responsible to the European Parliament for the activities of the Commissioners. Under the procedures set out in Article III-238, the European Parliament may pass a censure motion on the Commission. If such a motion is passed, the European Commissioners and Commissioners must all resign. The Commission shall continue to handle everyday business until a new College is nominated.

22. The revised Article 26 on The President of the European Commission now states:

1.  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 as before.

2.  Each Member State determined by the system of rotation shall establish a list of three persons, in which both genders shall be represented, whom it considers qualified to be a European Commissioner. By choosing one person from each of the proposed lists, the President elect shall select the thirteen European Commissioners for their competence, European commitment, and guaranteed independence. The President and the persons so nominated for membership of the College, including the future Union Minister for Foreign Affairs, as well as the persons nominated as non-voting Commissioners, shall be submitted collectively to a vote of approval by the European Parliament. The Commission's term of office shall be five years.

3.   The President of the Commission shall:

-  lay down guidelines within which the Commission is to work;

-  decide its internal organisation, ensuring that it acts consistently, efficiently and on a collegiate basis;

-  appoint Vice-Presidents from among the members of the College.

A European Commissioner or Commissioner shall resign if the President so requests.

23. The Government is keen to look at ways to reform the European Commission to make it more efficient and effective. In doing so, it is essential that the Commission's core strengths of independence and impartiality are preserved. We believe the current proposal does that.

24. However, the Government does not consider that the system for selecting Commissioners proposed in Article 26, paragraph 2, would attract the best candidates for the positions. The complexity of the proposed system risks dissuading candidates of the highest calibre from putting themselves forward.

Article 19: The Foreign Minister

25. The Government welcomes the fact that the "European Foreign Minister" would be mandated by, and answerable to, the Council on CFSP. But we believe there must be greater clarity about the exact status of any "European Foreign Minister" in the Commission. We also believe that naming this individual the "External Representative" (as suggested by the External Action Working Group report published last December) rather than "Foreign Minister" would be a better reflection of the nature of the job.

Article X: The Union's Democratic Life

We see merit in national parliaments scrutinising the annual programmes of the Council and the Commission. The body proposed, however, is too large and diffuse to provide meaningful scrutiny of these initiatives and will accordingly be purely symbolic. Presentations to a much smaller group of national parliamentarians with expertise in EU affairs would allow more time for genuine discussion and questioning and therefore be of more value in ensuring accountability. (Paragraph 43 of the House of Lords' Report.)

26. The Government agrees with the Committee that national Parliaments could usefully scrutinise the annual programmes of the Council and the European Commission, and welcomes the Committee's commitment to becoming more involved, and further upstream, in the Commission's Annual Policy Strategy.

27. This draft Treaty Article, which proposed the creation of a Congress of the Peoples of Europe, did not receive broad support in the Convention. It has accordingly been removed from the draft Constitutional Treaty. However we see merit in the Committee's proposals.

Article 20: The Court of Justice of the European Union

Article 20(3) needs substantial revision. (Paragraph 47 of the House of Lords' Report.)

28. The Government agrees that the earlier draft of this article needed revision. It is important that the jurisdiction of the ECJ is clear. There have been helpful changes to the text, making it narrower in scope and clearly subject to the detailed provisions in Part III. In its current form, Part III of the draft Constitutional Treaty provides a complete and accurate description of the Court's competences. On this basis, the Government broadly welcomes this draft Article.

29. The revised draft Article 28 now reads:

1.  The Court of Justice shall include the European Court of Justice, the High Court and specialised courts. It shall ensure respect for the law in the interpretation and application of the Constitution.

  Member States shall provide rights of appeal sufficient to ensure effective legal protection in the field of Union law.

2.  The European Court of Justice shall consist of one judge from each Member State, and shall be assisted by Advocates-General.

The High Court shall include at least one judge per Member State: the number shall be fixed by the Statute of the Court of Justice.

The judges and the Advocates General of the European Court of Justice and the judges of the High Court, chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles III-256 and III-257, shall be appointed by common accord of the governments of the Member States for a term of six years, renewable.

3.  The Court of Justice shall:

-  rule on actions brought by a Member State, an Institution or a natural or legal person in accordance with the provisions of Part III;

-  give preliminary rulings, at the request of Member State courts, on the interpretation of Union law or the validity of acts adopted by the Institutions;

-  rule on the other cases provided for in the Constitution.

Article 21: The European Central Bank (ECB)

30. The Government welcomes this draft Article.

Article 22: The Court of Auditors

The Committee remains concerned that, with the enlargement of the EU now imminent, it is still the case that very little has been done to reform the ECA. The opportunity afforded by the Convention to reform the Court appears to be passing by. We look forward to further proposals from, and discussions with, the Government on this question. (Paragraph 50 of the House of Lords' Report.)

We are therefore deeply disappointed that the new Article 22(3) simply retains the provisions introduced by the Nice Treaty and states that the Court "shall consist of one national of each Member State." (Paragraph 52 of the House of Lords' Report.)

The Government must be more pro-active in promoting reform of the ECA, both within the Convention and ahead of the forthcoming Intergovernmental Conference. The IGC will present the Member States with a unique opportunity to equip the Court to meet the challenge of enlargement; it is an opportunity which we urge the Government to exploit. (Paragraph 53 of the House of Lords' Report.)

31. The Government agrees with the Committee that a Court of Auditors with 25 Members is less than satisfactory. That is why we put forward a paper to the Convention with proposals for an alternative structure. That would have seen the 25 member Court being replaced by:

-  a Governing Committee, made up of one representative from each Member State, to elect the President, provide strategic direction and agree the annual business plan; and

-  a nine member executive Board of Auditors General, made up from Member States, strictly rotated on the basis of equality, with a President at its head.

32. These proposals made no headway at the Convention. However, the Government will continue to pursue the question of reforming the Court of Auditors at the IGC.

Article 23: The Union's Advisory Bodies

33. The Government welcomes this draft Article.

144   Government Response dated 23 July 2003.  Back

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