Memorandum submitted by Andrew Duff MEP,
Spokesman on Constitutional Affairs for the European Liberal,
Democrat and Reform Party (ELDR), and Graham Watson MEP, Leader
of the Liberal Democrat European Parliamentary Party (LDEPP)
European Liberal Democrats argue for a stronger,
enlarged and more democratic European Union. We support the ratification
of the Treaty of Nice despite its fairly obvious shortcomings,
and we welcome the admission by the heads of state and government
that a wider debate on the future of the Union is now necessary
leading to a more profound reform.
Indeed, for many years European Liberal Democrats have been impatient
for reform along constitutional lines so that citizens could get
to know who does what in Europe, and why.
Now that the scale of integration is broad and
its scope increases at a fast pace, the European Union must develop
and entrench a more legitimate system of government if it is to
continue to be a viable democracy. This means, among other things,
more clarity and openness, better policy and regulation, and a
stronger voice in world affairs. The need for such reform is accentuated
by the imminence of enlargement. To those ends, we congratulate
the European Commission on its White Paper on Governance, whose
recommendations we broadly support.
The result of the Irish referendum on 7 June
has jeopardised the Treaty of Nice. The event signalled a failure
of both the Irish and the European political systems, and reinforces
the point that Europe cannot be built on a false prospectus. It
is essential to tell the truth about the European Union, which
is that its members are no longer, in the classical sense, independent
sovereign states. EU member states are interdependent with each
other and are all dependent upon making a success of the Union.
They are obliged by treaty to seek and pursue common interests
and to "abstain from any measure which could jeopardise the
attainment of the objectives" of the Union as laid down fully,
if none too elegantly, in the treaties.
In addition to those formal objectives, the Union has also embraced
as a central goal the upholding of democracy and fundamental rights,
the most advanced statement of which takes the form of the Charter
of Fundamental Rights.
All this has been accomplished not by some ex
machina federalist plot, but by member states who, through their
various constitutional processes, have collaborated in the growth
of a supranational system of government that is beyond the control
of national governments, either individually or collectively.
National states are far from being redundant, but their government
and judiciary are coordinate with the European Union institutions
in all matters where power has been shared and sovereignty pooled,
and they are clearly subordinate to them in certain important
areas of principal competence.
At the centre of the Union's political system
lies the leadership role of the European Council. No reform of
the Union will be credible unless this body begins to work wholly
within constitutional constraints. Ad hoc summit meetings which
meet in closed session and arrogate power to themselves endanger
the good governance of the Union. If and when the heads of government
intervene in the legislative or budgetary processes of the Union
they must abide by the same disciplines that are imposed on the
other institutions. Parliamentary scrutiny must be enhanced. National
parliaments, especially, should do more to hold their prime ministers
to account for their performance in the European Council.
Above all, the arbitrary power of the European
Council to change the constitutional treaties must be curbed.
At present, the treaties are altered at will and sometimes, as
at Nice, fairly capriciously by heads of government, subject only
to ratification according to national constitutional requirements
which are in most cases, as in the UK, fairly formalistic.
The specific legitimacy of the European Parliament to participate
in the constitutional development of the Union must now be recognised,
not as a substitute for but as a supplement to the role of national
Too many national parliaments persist in regarding
the European Union as an aspect of foreign affairs an
international organisation rather than a political system. That
is why we have from some quarters, notably the UK prime minister,
the proposal to resurrect, as a "second chamber" of
the European Parliament, a gathering of appointed national MPs
after the manner of the Council of Europe Assembly.
Although national parliaments have a mainly
interrogative role in European Union affairs rather than a legislative
function, they should not underestimate their formal duties under
the existing treaties all of which the European Parliament,
quite rightly, envies.
In addition to exploiting their current powers to the full, national
parliaments should do more to help to transmit something of the
reality of the growing European dimension to their domestic, and
often nationalistic, press and public. COSAC, which twice a year
engages national parliaments in an official dialogue, can continue
to play a useful role as long as it is not dumped with quasi-legislative
duties (in which case it would quickly become the poodle of governments).
Otherwise, radical innovation is needed at Westminster.
The sharing of best practice across the Union suggests that the
House of Commons would do well to create a new, large and powerful
Europe Committee with the power to scrutinise all draft EU legislation,
to hold enquiries and to summon any minister both before and after
meetings of the Council or European Council. The Europe Committee
should combine the functions of the standing and select committee,
and ideally should be a joint committee with the House of Lords,
whose own existing European committee does good work but lacks
standing. MEPs should participate in the work of this Europe Committee,
and should also be able to table written questions to UK government
While the Europe Committee will tend to feature
MPs who are well-informed generalists in EU politics, sectoral
policy committees should also be encouraged to become more involved
in the EU dimension. To encourage the mainstreaming of the EU
affairs into national politics, occasional inter-parliamentary
conferences of specialist MPs should be convened by the national
parliament of the member state whose government is the president-in-office
of the Council in order to examine dossiers of special relevance
(such as reform of the CAP or EU enlargement). In the field of
defence policy, a joint standing committee of MPs and MEPs should
be established in order to reflect member state prerogatives and
to develop European Parliamentary expertise in this area.
We are strongly opposed to the insertion of
a second chamber of the European Parliament made up of appointed
MPs with different mandates, parliamentary timetables and enthusiasms.
Such a throwback to the past would over-burden the legislative
processes of the Union, weaken the European Parliament and confuse
the public. In any case, the EU already has a bicameral legislative
and budgetary authority, made up of the European Parliament, with
its popular mandate from the European citizen, and of the Council,
representing the governments of the member states (which are,
supposedly, accountable to national parliaments). As far as the
application of the principle of subsidiarity is concerned, this
is better achieved by the detailed work of policy specialists
in the Commission, Council and European Parliament than by a random
collection of national MPs on occasional day-trips to Brussels.
Collaboration between the European and national
parliaments will be further consolidated inside occasional constitutional
conventions for which the drafting of the Charter of Fundamental
Rights was a precedent. ELDR fully supports the setting up of
a second such convention to draft proposals for the next round
of treaty reform.
As far as national or regional parliaments are
concerned, it must be up to MPs to decide whether to make the
case for their inclusion as observers in ministerial delegations
to the Council. The danger, of course, is that the parliamentarians
would be taken hostage by governments.
As far as reform of the Council is concerned,
first and foremost is the question of transparency. It is unacceptable
that ministers should meet to pass laws in private. The occasional
public session and the carefully-honed press release are all very
well, but they are not an adequate response to the essential requirement
of a democratic regime that legislation should be made beneath
the public gaze.
We therefore propose that a special configuration of the Council
be created called the Law Council in which all formal decisions,
and where necessary votes, should be taken. This would apply as
much as to the preliminary readings of draft laws as to the final
acts. The proceedings would be open to the press and public, and
a verbatim report would be published.
In order to personalise law-making, and to suppress
the present problem of absenteeism, the Law Council should be
composed of a new cadre of senior Ministers of Europe. These ministers
would be responsible for coordinating different national ministries
in the various formations of the Council, a job that the General
Affairs Council, made up of foreign ministers, continues to fail
Where the new Ministers of Europe sit in their national capitals
would be a matter for domestic decision, but as one of their most
important roles would be to prepare the meetings of the European
Council, it would be logical for them to sit in the prime minister's
department or cabinet office rather than within the ministries
of foreign affairs. Ministers of Foreign Affairs, for their part,
would then be freed up to concentrate on what they do best, namely
foreign and security policy.
The transparency achieved by the creation of
the Law Council would transform the working of the co-decision
procedure with the European Parliament, establishing a more equal
relationship between the two arms of the budgetary and legislative
As one of the main motivations behind the constitutional
conference of 2004 is to rectify the errors of Nice, we would
take the opportunity to scrap the Byzantine system of qualified
majority voting, with its triple criteria and contentious voting
weights. In its place, we would establish the threshold for a
qualified majority vote (QMV) as a simple majority of member states
representing a majority of the population of the Union. That dual
majority system combines the merits of simplicity, transparency
An essential companion to the reform of the
Council is the introduction of a hierarchy of acts that would
draw a clear distinction between primary and secondary legislation
on the one hand and between legislative and executive acts on
the other. Such a reform would simplify decision-making, help
democratic scrutiny, improve the quality of drafting, and reduce
the temptation to legislate in excessive detail. It might also
streamline the decisions, recommendations, opinions, guidelines,
declarations, resolutions and statements which flow from the institutions.
Top of the tree would be organic laws of quasi-constitutional
significance, such as the EU's system of own resources.
Next in the hierarchy of hard law would be the Regulation, binding
in its entirety and directly applicable across the Union. Third,
the framework law or Directive would establish merely the purpose,
obligations and conditions of the proposed measure, leaving their
implementation to the Commission and its agencies, which include
member state governments. At the time of the passing of the Directive,
member states should be obliged to state (publicly) how and when
they intended to transpose the act into national law. Peer pressure
would mitigate the woeful national habit of ornamenting EU law
and offending thereby the important principles of proportionality
and legal economy.
As far as secondary legislation is concerned,
the norm should be that the Commission is made responsible for
giving effect to the rules established by the primary Regulation
or Directive. This means that the Council will have to concede
more executive power to the Commission, thereby allowing the over-complicated
system of management, advisory and regulatory committees, or comitology,
to be substantially reduced.
A call-back procedure should be devised to enable either the Council
or Parliament to force a review of executive acts delegated to
The hierarchy of acts should also define the
role of soft law, such as co-regulation with the social partners
as provided for in the area of labour policy, as well as setting
out rules of engagement for "open coordination", self-regulatory
codes of conduct or "benchmarking". These practices
are only really suited for policy areas where the competency of
the Union is subsidiary to that of the member states, such as
social security, public health, education and culture, and where
harmonisation of policy at the EU level is explicitly excluded.
Open coordination should not be used as a pretext for inaction
or ill-discipline at the Union level in matters that affect the
core acquis communautaire.
The Commission should be obliged to consult
the Economic and Social Committee and the Committee of the Regions
at the pre-legislative stage, as it draws up a proposal. These
consultative organs should also do more to monitor how EU legislation
works in practice on the ground. The usefulness and viability
of these Committees would be enhanced by this reform. The representative
capability of the Commission would also be strengthened, bringing
horizontal consistency to what is at present only a partial consultation
with fragmented sectoral interests.
Without compromising the Commission's right
of initiative, we want to reform the legislative cycle. The development
of the codecision procedure makes it necessary for the Council
and Parliament to play a greater role in the elaboration of the
annual work programme, and for national MPs also to be offered
the chance to shape events through improved collaboration with
the European Parliament.
We want the European Commission to become a
stronger and more effective executive, and we fully support the
current programme of internal administrative reform, as well as
President Prodi's commitment to building a close working partnership
with the Parliament.
The Commission must decentralise its management
of many aspects of the common policies to national, regional and
local government. Due to the dissimilar administrative and political
structures between member states, delegation is difficult. But
regions, especially, are bound to play a bigger political role
in the future in connecting the enlarging EU dimension to local
communities, particularly within the eurozone, where competitiveness
between regional economies is already much tougher. Constitutional
regions enjoying significant administrative and legislative capacity
should be given privileged access to the Court of Justice in protection
of their constitutional prerogatives under EU law.
As far as the appointment of the Commission
is concerned, the political parties should promote their candidates
during the electoral campaign (June) preceding the Council's nominations
(July). This would add some sparkle to the election and force
the Council to weigh its outcome. Parliament should also have
the right to block individual nominations, rather than as at present,
just to approve the President and then the college as a whole.
A more radical option would be to reverse the process by giving
Parliament the role now played by member states to nominate Commissioners.
This would ensure that the shape of the college reflects a parliamentary
majority. Because we wish to develop the Union as a parliamentary
democracy, we are not in favour of the direct election of the
President of the Commission.
Happily, the future of the Union's foreign,
security and defence policy does not depend on the ratification
of the Treaty of Nice. It is in fact the European Council that
holds the key to developments, and in particular to the evolution
of the powers of the Union to organise its common defence.
In institutional terms, we want to see the progressive advancement
of Community competence in this area, not least because of the
important budgetary control responsibilities falling to the European
ELDR strongly supports the creation of the Rapid
Reaction Force and hopes that its success will engender further
progress towards a common defence policy, including the formalisation
of a EU Council of defence ministers. In the 2004 constitutional
reform we want a Protocol to be added to the treaty containing
the Article 5 provisions of WEU committing those who choose to
adhere to it to mutual defence.
We also advocate the acquisition by the European
Union of full legal personality under international public law.
This would enable the EU to become an official participant in
the United Nations, IMF, WTO and World Bank, and thereby to promote
itself worldwide as a model of regional integration. It would
also position the Union to be able to sign up, as all its member
states must do, to the European Convention on Human Rights.
The draft Treaty of Nice ignores the repeated
claim of the European Parliament to be granted full powers of
codecision with the Council whenever the ministers act by QMV.
There is no one reform of the European Union more vital than this.
In the new Convention we will be making a coherent
set of detailed proposals for the widespread extension of Parliament's
powers. We have already drawn attention to the need for an enhanced
participation of the Parliament in the matters of Treaty revision,
the appointment of the Commission and in the scrutiny of secondary
legislation. We also regret that the Parliament was not given
the power of assent in trade policy under Article 133 TEC; and
we resent its effective exclusion from the decision-making over
reinforced cooperation among a smaller group of member states
in certain policy areas.
We deplore the Parliament's marginalisation over the control of
the major part of EU expenditure, despite its constitutional function
as the second arm of the budgetary authority.
We are, moreover, strong advocates of internal
Parliamentary reform, notably in respect of the Statute of Political
Parties and the Statute of Members. We want clear and accountable
methods of funding political campaigning on a European basis,
and the introduction of the best employment practices for MEPs
and their staff.
Once these vital reforms have taken place, Parliament
will be in a good position to control its own affairs, including
the question of its seat. The issue of its eventual size after
enlargement should also be re-opened. A Parliament of many more
than 700 Members will become unmanageable, especially once the
current level of absenteeism is lowered on the suppression of
the practice of dual mandate that still pertains in certain member
states (including the UK). It will also be desirable to introduce
transnational lists to elect a small number of MEPs. Such an innovation
would encourage the development of truly European political parties
without which the Parliament will always find it difficult to
connect with the public.
The powers of the Union, having grown up over
the years somewhat haphazardly, are articulated not so much as
explicitly delegated competencies but as intended political objectives.
The actual distribution of powers within the Union is notoriously
difficult to grasp. Competencies are dispersed within the Union
in a fairly wide but shallow way, many having originated as improvisations.
That is why Article 308 has been and still is
invaluable. Yet it should not be misconstrued: it is not and was
never intended to be a power of general competence; it can only
be used if the Council is unanimous that it should be (on a proposal
of the Commission), and then only in the sphere of the common
Most of the Union's authority is exercised through
different types of more or less practicable collaboration between
member state governments and the Commission, with the connivance
of the Court of Justice. Strictly speaking, the treaties allow
for only six truly common policies coal and steel, agriculture,
fisheries, commerce, transport, and, more recently, monetary policy.
The rest has proceeded via cooperation programmes, coordination
measures, contributions, common guidelines, positions and strategies,
and, occasionally, joint action.
Paradoxically, as integration has proceeded
the clarity and self-assurance of the early years have rather
been lost. The plethora of derogations and qualifications are
testimony to the fact that the Union has often developed by dint
of a crisis, and all too seldom as a result of cool rationality.
The Treaty of Maastricht introduced extra complication by adding
two "pillars" in the fields of "common" foreign
and security policy and "cooperation" in justice and
home affairs. Clearly, the Union is not a concrete settlement
enjoying a sense of finality. A classical catalogue of competencies
is therefore not appropriate. It would certainly be very difficult
to draft, as earlier long-camouflaged disputes would be resurrected.
The variable geometry of the EU with respect to national structures
and state cultures would also be accentuated.
Our preference is for another constitutional
approach in which relatively few but important powers would be
finally settled on the European Union at the federal level. These
principal competencies must be well chosen and clearly defined,
without which the operation and even existence of the Union would
be impaired. They might include:
monetary and currency policy
expenditure not in excess of x per
cent of GDP
environmental matters of concern
to more than one member state
The Union would have the main responsibility
to make laws in these specified policy areas, and national governments
and parliaments would be subsidiary. In most other matters the
different levels of government would share competence, thereby
allowing the Union to continue to make a valuable contribution
to public policy across a wide field.
The constitution would also set out the values
and goals of the Union, and enshrine its code of fundamental rights
in the form of the Charter. It should insist that the actions
of the European Union should not go beyond what was necessary
to achieve its objectives. Its decisions would be taken as closely
as possible to the citizen without impairing the effective operation
of the Union. The existing EU treaties and all laws enacted under
them would be laws of the Union save where they were inconsistent
with the new constitution. The constitutions and laws of the member
states would apply save where they were inconsistent with the
constitution of the Union.
The Charter of Fundamental Rights is an essential
prerequisite for a constitutional Europe. It serves to define
a European federal society, made up of mutually respectful minorities,
tolerant of dissent, and confident of fair treatment. The elevation
of EU citizenship implicit in the Charter presages another timely
constitutional reform, the opening up of access by the individual
to the Court of Justice. To date, Article 230 TEC has limited
the circumstances in which a non-privileged litigant can challenge
the EU institutions, and the Court of Justice has been strict
in its interpretation of that clause. A very significant change
to the quality of the jurisdiction of the Court would be to allow
the citizen and, by inference, non-governmental organisations
to seek judicial review directly. Not only would this consolidate
human rights protection at the EU level, but it would also increase
the means of redress available to civil and economic society against
EU acts in any field.
We also insist that the Court acquires full
powers of judicial supervision over the second and third pillars
of the Union, many aspects of which comprise issues of great sensitivity
to the individual, such as asylum and immigration or the actions
of police and customs officers.
The four items specified for inclusion in the
agenda of the 2004 conference add up to a fully fledged constitutional
agenda. The UK government and parliament should welcome the constitutional
approach and should not seek refuge in a non-statutory code or
charter of competencies to supplement the present pile of treaties.
It would be a far from straightforward task to draft an overtly
political document which, although officially non-binding, would
be bound to be used by the courts as a reference point in case
law, just as they do now with the Charter of Fundamental Rights.
Like the Charter, a new code of competencies "solemnly proclaimed"
but supposedly optional would be unsettling, and could only be
an unsatisfactory staging post to a decent constitutional settlement.
It would be better to get the constitutionalisation
process under way, in the Convention, as soon as possible after
Laeken, and to complete it with an EU wide electoral endorsement
on the same day as the European Parliamentary elections in June
2004. Laeken is therefore a historic point of decision for Europe.
It offers a clear path towards a constitutional future for post-national
democratic government and, for those unwilling to accept that
option, a time to depart elsewhere. It is certain that neither
the UK nor any other member state, old or new, will be able to
stop this evolution. More of the same is no longer an option for
the whole of the European Union. There is a core group of member
states, including Germany, that is willing and ready to go forward
towards the building of a more federal Europe. It is to be expected
that that choice will be put clearly by the Belgian presidency
at Laeken. Moreover, the ensuing Convention is more than likely
to include in its large agenda the drafting of a clause that would
allow a member state to negotiate its own secession from the Union.
ELDR urges the European Council at Laeken to
settle the matter of the composition and mandate of the new Convention
as well as a timetable for its work from spring 2002 until autumn
2003. But it should leave up to the Convention itself a choice
of working method and procedure. The brief should be specific
but flexible, allowing the Convention to introduce alternative
constitutional prescriptions if it wishes to do so. The Convention
should be encouraged to work by consensus to achieve the maximum
refinement of point of view. It must be composed of representatives
of the European Council, Commission, Parliament and national parliaments.
Accession states should also participate. It must hold all its
meetings in public, and create a common platform and agenda for
a wider debate on the complex issues involved. It should establish
a structured dialogue with a wider forum of civil society.
The Convention will be a new source of legitimacy
for the Union. By entrenching the purpose, powers and principles
of the Union in a new constitutional treaty it will succeed in
alleviating the worries of those who fear creeping integration
towards a centralised superstate. By lightening the decision-making
procedures in well-defined areas of public policy, the Convention
can help to engage public interest in and identity with the institutions
of the Union. European Liberal Democrats urge the House of Commons
to help to point the way forward towards a more efficient, legitimate
and enlarged European Union.
4 October 2001
1 Declaration No. 23 to the Final Act of the Treaty
of Nice. Back
COM(01) 428, July 2001. Back
Article 10 TEC. The obligation to acknowledge the common interest
recurs throughout the Treaty. See for example Article 99 TEC which
states that member states "shall regard their economic policies
as a matter of common concern"; or Article 11 TEU which says
that member states "shall support the Union's external and
security policy actively and unreservedly in a spirit of loyalty
and mutual solidarity ..... They shall refrain from any action
which is contrary to the interests of the Union or likely to impair
its effectiveness ...". Back
The objectives of the Union are found in general terms in Article
2 TEU; Article 11.1 TEU for common foreign and security policy;
Article 29 TEU for police and judicial cooperation in criminal
matters; and, by no means least, Article 3 TEC for policies on
economic and monetary affairs, commerce, internal market, asylum
and immigration, agriculture and fisheries, transport, competition,
employment, social cohesion, environment, industry, R&D, communications,
public health, education, culture, training, overseas aid and
development, consumer protection, energy, civil protection and
Article 48 TEU. Back
National MPs have formal rights by virtue of the Protocol on
the role of national parliaments in the European Union of the
Treaty of Amsterdam, and by TEU Articles 48 and 52 (treaty amendment),
49 (enlargement), 17.1 (defence), 24 (international agreements
in CFSP), 34.2(d) (conventions in police and judicial cooperation),
42 (passerelle between third and first pillar), and by TEC Articles
22 (development of citizenship), 190.4 (electoral procedure of
the European Parliament), and 269 (system of own resources). Back
For a fuller statement of why the prime minister's proposal is
non-starter, see Andrew Duff's evidence to the House of Lords
Select Committee on the European Union. Back
Article 207.3 TEC now merely provides that "when the Council
acts in its legislative capacity, the results of votes and explanations
of vote as well as statements in the minutes shall be made public". Back
Another task of the new style Ministers of Europe would be to
strengthen the central coordinating function of COREPER a propos
the subsidiary Economic and Financial Committee, Justice and Home
Affairs Committee and the Political and Security Committee (Article
We would further sharpen the co-decision procedure by inserting
a mandatory timetable within which the Council would have to respond
to the initial Commission proposal (Article 251 TEC). We would
also abolish the cooperation procedure, in which the Council may
overrule the Parliament (Article 252 TEC, at present retained
mainly in the field of Economic and Monetary Union). Back
Article 269 TEC. At present the financial system is agreed by
the Council acting unanimously and then ratified by all member
states. The European Parliament is merely consulted. Back
Article 5 TEC and the Protocol on the application of the principles
of subsidiarity and proportionality. Back
Article 202 TEC. Back
Articles 5 and 230 TEC. Back
Article 214 TEC. Back
Article 17 TEU. Back
Especially in those first pillar areas where closer cooperation
is most likely to be tried first, namely, where unanimity persists
in the Council (Article G.2 in Part 1 TEC of the Draft Treaty
of Nice). Back
Article 272 TEC. Back
Articles 35 TEU and 68 TEC. Back