Select Committee on European Union Ninth Report

Article 16: Flexibility clause

1.  If action by the Union should prove necessary within the framework of the policies defined in Part Two to attain one of the objectives set by this Constitution, and the Constitution has not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the assent of the European Parliament, shall take the appropriate measures.

2.  Using the procedure for monitoring the subsidiarity principle referred to in Article 9, the Commission shall draw Member States' national parliaments' attention to proposals based on this Article.

3.  Provisions adopted on the basis of this Article may not entail harmonisation of Member States' laws or regulations in cases where the Constitution excludes such harmonisation.

Explanatory note

"In view of the Convention's desire to ensure that the implementation of this provision respects the limits of the competences conferred on the Union by the Constitution, paragraph 1 states that this provision may be used only "within the framework of the policies defined in Part Two".

The procedure involving European Parliament assent is proposed (by way of derogation from the conclusions of Mr Amato's Group, which decided that codecision should be the general rule for the adoption of legislative acts and that assent should be reserved for the conclusion of international agreements) and also unanimity for the Council vote. The possibility of a qualified majority could be examined during the Convention's general debate on the question. This procedure is being proposed in order to restrict the use of this provision, while at the same time expediting matters when it is necessary to have recourse to it.

Paragraph 2 follows up the proposals by Mr Mendez de Vigo's Group.

Paragraph 3 seeks to introduce into the Constitution a limitation on the scope of the flexibility clause which reflects current Court of Justice case law."


81.  As mentioned above (paragraph 38) the title of this Article may be confusing. Flexibility is sometimes used to mean closer cooperation. Article 16 is derived from Article 308 TEC. Article 308 TEC is a major source of the mistrust which many people feel towards the existing Community and Union. The inclusion of a similar provision in Article 16 raises a number of questions, both of principle and of detail.

82.  First, the inclusion of a catch-all/fall back clause such as is being proposed casts doubt on the value of drawing up a list of competences. Even if it is accepted that that list cannot be definitive (the list in Article 11 above cannot by definition be exhaustive and that in Article 12 is merely illustrative) the desirability of including a provision which will inevitably affect the respective competences of the Union and the Member States needs the most careful consideration. There is also a danger that any "flexibility" clause could be used as a way of bypassing the need to amend the Constitution and the parliamentary democratic control and national constitutional requirements that would imply. On the other hand the absence of a power for the Union to take action might lead the Court of Justice to construe existing powers more widely and possibly even develop a theory of implied powers.

83.  The experience of Article 308 TEC (formerly Article 235 EC and once known as "la petite révision"), sometimes linked with other Treaty Articles, has been that the power has been used extensively over a range of matters (including social policy, the environment, consumer protection, external affairs and institutional and financial matters).[33] In addition to filling in gaps[34] in the Treaty, some quite substantial policy and regulatory measures have been developed and adopted where the "Treaty has not provided the necessary powers". For example, the creation of a Community trademark[35] and the European company,[36] establishing a Community action programme in the field of civil protection,[37] and creating a rapid-reaction mechanism (humanitarian aid).[38] The new Article 16 would be wider in scope. It would apply to the Union (not just the Community/First Pillar) and therefore confer power to act in relation to the Common Foreign and Security Policy (CFSP—Second Pillar) and Police and Judicial Cooperation (Third Pillar). The power would be exercisable at the initiative of the Commission, a factor which is politically significant in the context of the CFSP.

84.  There are some safeguards in Article 16. First, any measure must be adopted by unanimity in the Council. Second, parliamentary control is strengthened. Article 16(1) requires the assent of the European Parliament and Article 16(2) makes explicit reference to national parliaments. As regards the role of the Parliament, it might be questioned why co-decision should not apply. The reason given in the Explanatory note (that it might slow down the procedure) seems unconvincing. Why should action under this provision be any more urgent than action under any other provision? Further, Article 16(2) is a weak provision, requiring only that the Commission draw Member States' national parliaments' attention to proposals. It seems clear to us that if national parliaments are to have a meaningful role in this context then their views on the vires and merits should also be respected.

85.  Finally, Article 16(3) prohibits the use of Article 16 to harmonise national laws where that is excluded by the Constitution. Article 16 cannot be used to get round Article 15(4).

33   See The Residual Competence: Basic Statistics on Legislation with a Legal Basis in Article 308 EC. A working document prepared by the Swedish Institute for European Policy Studies and submitted to the Convention Working Group V. Working Document 19. Back

34   For example, Council Regulation No 1103/97 [1997] OJ L162/1, relating to the introduction of the euro. Back

35   Council Regulation No 40/94 [1994] OJ L349/83. Back

36   Council Regulation No 2157/2001 [2001] OJ L294/1. Back

37   Council Decision of 9 December 1999 [1999] OJ L327/53. Back

38   Council Regulation No 381/2001 [2001] OJ L57/5. Back

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