Intergovernmental Conference 1996: Which Constitution For The Union?

European Law Journal, Vol. 2 , No. I , March 1996, pp. 83-102 0 Blackwell Publishers Ltd. 1996, 108 Cowley Road, Oxford OX4 IJF, UK and 238 Main Street, Cambridge, MA 02142, USA

Intergover nrnental Conference 1996: Which Constitution For The Union?

Michael Nentwich and Gerda Falkner*

Abstract: This paper addresses the five major structural issues on the agenda of the 1996 Intergovernmental Conference of the Member States of the European Union: the option of replacing the treaty framework by a European constitution; the issue of fundamental rights in the Union; the future of the three-pillar structure; the puzzling question of how to allow for variations in European integration without endangering unity; and, finally, the political ‘evergreen’ of the division of competences between the Union and its Member States. The analysis is based on contributions by EC institutions and prominent groups of experts and scholars published before the political bargaining started.

I Introduction

An examination of the ongoing debate on how to reform the European Union at the forthcoming Intergovernmental Conference (IGC) reveals that it is undeniably the very basic structure of European supranational cooperation which is once again at stake. Clearly, the most political phase of the whole process has only just begun, with the establishment in June 1995 of a reflection group comprising personal representatives of the Foreign Ministers. The more informal early stages of preparation for the IGC (during spring 1995) were dominated by the presentation of discussion papers by groups of academics and bureaucrats (starting, indeed, with the presentation of the Maastricht compromises), as well as reports by European institutions on the functioning of the Treaty on European Union. These statements show that, at least at the expert level, the issues under consideration go far beyond those few matters explicitly scheduled for review within the TEU’ or placed on the agenda by the European Council2: Should the Union be based on an explicit constitution which could possibly guarantee fundamental human (and even social) rights? Should the present system of three ‘pillars’, with different sets of institutions and rules of

* Lecturer at the Research Institute for European Affairs, University of Economics, Vienna; and lecturer at the Institute for State and Political Sciences, University of Vienna, respectively. This article is based on a broader research project: cf infra n 3. Mainly the co-decision procedure and the issue of introducing a hierarchy of norms. 1.e. the legislative role of the European Parliament, the number of Commissioners, weighting of votes, budgetary procedures and comitology.

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Competence, be prolonged? Is greater flexibility for differentiated integration within diverse policy fields desirable, possibly at the expense of unity? Should the principle of subsidiarity be reformulated? Should individual Member States be allowed or even forced to leave the Union? These latter questions have been raised mainly within the perspective of a further enlarged Union to the East and South. Joint policy-making in a Community of up to 30 members, including the Central and Eastern European countries plus Cyprus and Malta, would have to pay tribute not only to increased numbers but also to broader diversity. This has brought the disputes over ‘variable geometry’, ‘multiple speeds’, or ‘pick-and-choose’ Europe back onto the political agenda.

Over the past two years, all of these topics have converged into what may be called a genuine constitutional debate3. Not only has a series of profound and innovative proposals in relation to specific problems emerged, but at least two comprehensive proposals for a European constitution have been published with a view to the IGC4. This article concentrates on some of the major topics of this debate, since they touch upon aspects of the basic legal and political structure - in other words, the overall constitutional architecture - of the European political system. Following an outline of relevant political and expert statements on these issues, reflections from both a legal and political science perspective as well as some political and pragmatic recom- mendations will be presented5.

I1 Treaty or Constitution? A The Proposals

As noted, a series of developments has widened the scope of the 1996 IGC to such an extent that many argue that the time has come to draft a formal constitution. Two lines of reasoning converge in this respect: first, the more fundamental aspiration to solve the pressing problems of the Union at a stroke; second, a rather pragmatic perception of the need to redraft the Union framework (possibly without major reform) in order to render it more accessible and appealing for European citizens.

(i) Among the many proposals for a profound reform of the European Com- munities in connection with the creation of a single constitutional framework is a German CDU/CSU paper6. It calls for ‘a constitution-like document . . . delimiting the respective competences of the EU, the Member States and the regions in clear language and defining the ideal basis of the Union’’. This ,document should be

Furthermore, the difficult ratification process of the Maastricht Treaty made it obvious that the ‘Maastricht Union’ marks a still unsatisfactory stage of democracy at the European level. On the debate regarding institutional reforms, see e.g. G. Falkner and M. Nentwich, European Union: Democratic Perspectives After 1996 (Service Fachverlag, 1995). European Constitutional Group (ECG), A Proposal for a European Constitution - A Report, December 1993, and F. Herman, Second Report of the Committee of Institutional Affairs on the Constitution of the European Union, PE 203.60Uendg.2 - A3-006494.9 February 1994. For reasons of space, we concentrate here on the new contributions to the ongoing debate rather than the vast general literature on the legal and political system of the Union, which clearly represents the relevant background. The two leading politicians of the major faction in the German Bundestag (CDUICSU), Wolfgang Schauble and Karl Lamers, presented a paper entitled ‘Reflections on European Policy’ on 1 September 1994. CDU/CSU-Faction in the German Bundestag, fhdegungen zur europaischen Politik, .Bonn 1 September 1994, no 10793, p 5 (our translation).

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March 1996 Intergovernmental Conference 1996

oriented towards a federal state model and the principle of subsidiarity. Justus Lipsius* calls for a new and single legal entity, the European Union, which should be given legal personality and treaty-making power9. He therefore suggests that the existing treaties be replaced by one ‘Treaty Charter’, which should be ‘as short and readable as possible, dealing with principles, competence and institutional matters, and on the other hand, a number of Protocols annexed to it, dealing in detail with specific matters, such as the Internal Market’IO. The Committee of the Regions (CoR) is currently the only EU body explicitly calling for a ‘basic text’ which would include provisions on the fundamental rights of European citizens, the aims of the European Union, the institutions of the Union and the competences of these institutions”.

In terms of a genuine draft constitution, two widely-discussed proposals for a ‘qualitative leap’ policy have recently been made (in addition to several proposals predating the Maastricht Treaty12). By its very choice of name, the European Constitutional Group (ECG)I3 expresses its belief in the need for a constitution, and has indeed presented a draftI4. Obviously, the path of European integration desired by this group is considerably distant not only from the present institutional structure but also from the underlying guiding principles for European policy as contained in, or at least allowed for, by the Treaties, such as the establishment of a (defacto, albeit extremely minimalist) model of social market economy rather than, as they suggest, a radically neo-liberalist regime. From this perspective, the drafting of a completely new constitutional framework is also grounded in the wish to depart from the present acquis communautaire.

The 1994 Herman Report by the Institutional Committee of the European Parliament is not only clearly in favour of a European constitution but even proposes an elaborate draft. Along with many legal scholars, the report argues that a constitutional legal order has already developed with the existing Treaties together with several acts of equal value, some leading principles drawn from the case law of the Court of Justice (mainly direct applicability and primacy), as well as a series of special rights conferred upon the citizens of the Union. However, rapporteur Herman argues for a fully-fledged, explicit constitution for two reasons. First, a constitution would put an end to the continuing fiction of the still-untouched sovereignty of Member States as well as to the ambiguity which allows national governments to blame Brussels for failures and to attribute successes to themselvesL5. Second, a formal constitution would rank comparatively higher than the present treaty framework in terms of democracy, not least because the Member States and the European Parliament should also be involved in its formulation and adoption16. Among the

An anonymous ‘international civil servant’ from the General Secretariat of the EU Council. Justus Lipsius, ‘The 1996 IGC’, 3 (1995) 20 ELR 235 (here pages cited from manuscript); see also (1995) 31 RTDE 51.

l o Ibid, p 52. I ‘ Committee of the Regions, Opinion on the Revision of the Treaty on European Union (Pujol Report),

Brussels, CdR 136I95 (SP) HBIMICWIRIms, 21 April 1995, pt 14. Interestingly, the CoR calls the Maastricht Treaty ‘a European constitutional text’.

I * E.g. Parliament’s Draft Treaty on European Union 1984 (the so-called Spinelli initiative), OJ 84/C 77/33; or the proposals by Allais in 1991.

l 3 This group comprises thirteen members, who are mostly university scholars, especially economists, from France, Switzerland, Germany, Austria, Italy, Sweden, Spain, and the UK.

l4 ECG, supra n 4. Herman, supra n 4, 11.3.

l 6 Ibid, III.C.2.

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many innovative provisions of the constitution proposed in the Herman Report is its entry into force as soon as the majority of Member States representing at least four fifths of the population ratify it17. Those Member States unable to ratify in due time would either have to withdraw or stay in the changed Union. In the case of withdrawal, special agreements between the Union and those Member States would treat them as privileged associated partners similar in status to the signatories of the EEA agreement’*.

(ii) Clearly, the whole idea of a formal constitution for the Union provokes strong reactions from ‘anti-federalists’ among European politicians. Therefore, consensus on a radical departure (that is, the setting in place of a fully-fledged European constitution with all the political symbolism that constitutions usually implyI9) seems quite unlikely at the moment. But there is still another much more pragmatic aspect to this debate: as the Commission argues, ‘the Union’s basic treaties are difficult to read and understand, which is hardly likely to mobilise public opinion in their favour’20. It considers that the ‘three Communities and the Union should be merged into a single entity, as should the Treaties...’21. Furthermore, the Commission’s report advocates a ‘fundamental text’ listing the rights and duties of European citizens22. A similar route is suggested by the European Parliament’s recent resolution on the 1GC:’the Treaty should be rewritten so as to simplify and make it more appealing to citizens; for example, the provisions concerning citizens’ rights should be placed at the beginning, those covering the institutions or the content of policies should be separated, and out- of-date articles deleted23. One specific proposal included in the European Parliament resolution is that the economic rights presently scattered throughout the Treaty, such as the right of establishment or the free movement of labour, should be brought together in a single article and that those rights should be r e in f~ rced~~ . The Court of Justice also favours a codification and settlement of the primary law25; so too, the Council admits that the successive juxtaposition of treaties and treaty revisions has damaged the readability of the primary law26.

The Centre for European Policy Studies (CEPS) argues that ‘the form and even the tone in which the intergovernmental agreement is presented to the public will be crucial for its immediate acceptability and its long term durability. The final text must

comparable provision of the 1984 Draft Treaty on European Union requested that the necessary majority of Member States represent two thirds of the overall population (Article 82). Herman, supra n 4, Article 47 of the proposed constitution.

l 9 As CEPS puts it in its 1995 report: a constitution should ‘capture the higher ground’, see Centre for European Studies (CEPS), ‘Towards 1996: The Agenda of the Intergovernmental Conference’, in P. Ludlow and N. Ersball, Preparingfor 1996 and a Larger European Union: Principles and Priorities, CEPS Special Report, no 6, 1995.

2o Commission of the European Communities, Report on the Operation of the Treaty on European Union, SEC(95) 731, 10 May 1995, p 34.

21 Ibid, p 34. 22 Ibid, p 4. 23 European Parliament, Resolution on the Functioning of the Treaty on European Union with a View to the

1996 Intergovernmental Conference - Implementation and Development of the Union, PE 190.M1, 17 May 1995, pt 2.

24 Ibid, pt 7. 25 European Court of Justice (ECJ), Report Concerning Certain Aspects of the Application of the Treaty on

European Union, Luxembourg, May 1995, pt 23. 26 Council of Ministers, Projet de Rapport sur le Fonctionnement du Trait6 sur I’Union Europienne, Brussels,

SN 1821/95, 14 March 1995, pt. 12; see also Reflection Group on the IGC 1996, Progress Report from the Chairman, SN 509/1/95 rev. 1 (REFLEX), Madrid, 1 September 1995, p 21.



be clear and appealing’27. It highlights three considerations vital to this all but easy task: European voters ought to be made aware of the values for which Europe stands, and of the obligations as well as the rights that membership of the Union entails; the Treaty should be consolidated and simplified; finally, the European Council should commission an ‘official introduction and commentary written in non-technical languagey2*.

These statements claim for the Union several classic features of written constitutions: first, to offer a basic orientation, in a comprehensible manner, for the common polity; second, to inform citizens, ideally in the form of a catalogue, of their rights and duties; third, to increase identification with the political system and to mobilise the people for a common cause. Indeed, even this desired psychological effect on citizens parallels the usual aim of constitutions. It can thus be argued that, at least in relation to the underlying aims and some of the major elements, even those who pragmatically call for a ‘consolidation’ of the European treaties envisage something very close to a constitution.

B The Status Quo and Beyond: A Pragmatic View

But how do the present treaties fall short of what lawyers accept as a fully-fledged constitution? It has been noted that the legal framework of the Union and the Communities already fulfils some of the major tasks of a constitution. Looking at the role of the Court of Justice, the issue of fundamental rights which are granted to citizens, the relationship between national and European law, and the notion of a ‘new legal order’ as used by the Court, one has to conclude that the process of developing a constitution has been under way for a considerable period of time and continues in an incremental fashion. It should also be kept in mind that there is no generally acknowledged list of items which should necessarily be addressed in a ‘genuine’ constitution, and that existing charters are quite diverse in this respect. The classic distinctive element between a ‘constitution’ on the one hand and a ‘treaty’ on the other may be seen in the way that future amendments are processed. Two alternatives exist: either through ‘internal’ institutions and procedures (which in the European case would mean by the Council andlor Parliament) or by ‘external’ negotiations involving only the institutions of the Member States as they remain ‘masters of the treaties’. However, this distinction is not particularly helpful in our context, as the system for constitutional amendments at the EU level is already somewhere between these two extremes - and is moving towards the first alternative. First, Article 235 EC allows for an incremental transfer of competences from the Member States to the Community level without a ratification process (by unanimous decision of the Council on a Commission proposal), at least to the extent that it can be defined as ‘within the objectives of the Community’ (see also the debate below on a catalogue of competences). This would in most political systems qualify as a constitutional amendment. Second, the EU institutions are increasingly becoming involved in the debates preceding treaty amendment^^^. If this de facto consultative function was changed into a right of assent for the European Parliament to all ‘constitutional

27CEPS, supra n 19, p 53. 28 Ibid, p 55. 29 See the reports to, and participation in, the Reflection Group as well as the mediating role of the

Commission in the last IGC.



amendments’, as the European Parliament has demanded30, it would fit into the development which has been taking place over the past decade toward an increasingly parliamentary democracy at the European level.

Regarding the already somewhat ambivalent nature of the Union’s current basic texts, the question of how to name a future codification of the Treaties - constitution or new treaty - might be more a matter of symbolism and political presentation than content. It is therefore suggested that it would be wise not to dwell too much on adherence to the label of ‘constitution’ or ‘treaty’. What is clearly to be recommended, however, is that the legal maze be made more coherent and transparent for citizens. The risk, should this not occur, is that people, especially in new and future Member States, might feel increasing regret at seeing their formerly more coherent and transparent national systems virtually superseded by a constitutional patchwork which is considerably more difficult for them to identify with. The widespread anti-European feelings reported by recent opinion polls are based not only on some of the policy outcomes but also on the perceived remoteness of the ‘Brussels system’. Thus, much will depend on the contents of the 1996 reforms (e.g. greater possibilities for citizens’ participation, clear-cut establishment of the principle of democracy and the rule of law) and on how they are brought about (possibly through more open and democratic debates rather than publicity campaigns and a top-down approach). On this basis, describing what will happen in 1996 as the ‘drafting of a European Constitution’ might well play a role in attracting the attention of European citizens and attaining collective agreement on some fundamental European principles which might, in turn, guide future developments. Nevertheless, labelling the new intergovernmental consensus will certainly not be the prime factor determining the future of European integration.

I11 A Bill of Fundamental Rights for the EU? One important aspect within the drafting of a European constitution would clearly be the question of how to deal with the protection of fundamental rights. This is a long-standing debate, which led to considerable tension between some national constitutional courts and their European counterpart over the question of whether there is an appropriate protection of basic rights by the Court of Justice. This issue is closely related to the doctrine of supremacy of EC law even over the constitutional law of Member States. The Court of Justice’s position, increasingly accepted by national courts, is based on the acknowledgement that fundamental rights should be an unwritten part of the Community’s primary law. The Court of Justice protects them as part of the general principles of Community law against violation by secondary Community legislation. The Court of Justice draws upon the Convention on the Protection of Human Rights and Fundamental Freedoms of the Council of Europe and on relevant national provisions. Article F(2) TEU took this established practice on board. Without going into the details of this complex area, one can conclude that

301n this case, in our view, when an institution set up by a basic legal document plays a decisive role in making changes to this basis, the dividing line between treaty and constitution is transgressed, even if the institutions of the Member States should continue to have to ratify the amendments assented by the European Parliament. The same would hold if treaty amendments had to be ratified by a (new) ratifying body comprising members of national parliaments and the European Parliament, since it would not be the institutions of the Member States but a special, supranational organ deciding on ‘constitutional’ matters.


March 1996 Intergovernmental Conference I996

although the Community in practice respects the fundamental rights, their status in the Union context might nevertheless be improved. Therefore, a change in this regard is under discussion. Apart from the Federal Trust Round Table’s proposal3’ to simply insert a provision in the Treaty explicitly charging the Court with the task of ensuring that the institutions respect the fundamental rights3*, there are two major alternatives.

First, the Union (or the European Community) could join the European Conven- tion. Whether this is legally possible for the UnionlCommunity is currently the subject of a pending request for an opinion of the Court of Justice. Among others, the European Parliament and the British Federal Trust Round Table favour this a l t e rna t i~e~~ .

The other option would be to draw up a catalogue of fundamental rights as part of the primary law of the Union in the TEU or a formal European constitution. Among political and academic commentators, the Europaische Strukturkommi~sion~~ states that with regard to giving the judicial system the necessary amount of authority, democratic basis and acceptance, any democratic community ought to have basic rights enshrined in a treaty by directly legitimised institutions, which for the Union, they seem to suggest, would be both the European Parliament and the national parliament^^^. In a document on ‘the elements of a Spanish position’, the chair of the IGC reflection group, Carlos Westendorp, called for the adoption of a Charter on Fundamental Rights and Liberties which would be protected by the Court of Justice in L u ~ e m b o u r g ~ ~ .

Among the institutions, the CoR has requested that a catalogue of fundamental rights be included in the Treaty37; the Commission favours a fundamental text which the citizens of the Union ‘can invoke as a summary of their rights and duties’38; the Court of Justice does not take a substantive position, but points to the question of modalities of control of these fundamental rights39.

In one of the most detailed proposals concerning the content of such a catalogue, the Europaische Strukturkommission suggests limiting it to the ‘essential basic and human rights’, including dignity, the equality principle, respect for one’s physical integrity and freedom of the individual, as well as derogated rights such as the right to property and professional freedom. While the inclusion of detailed social rights is left open for political negotiation within the Member States, the Strukturkommission

31 The Federal Trust for Education and Research is a London-based non-governmental organisation founded in 1945 and devoted to the study of ‘the future of democratic unity between states and peoples’, with a principal focus on the European Union and the UK’s role within it. It has established a Round Table consisting of well-known scholars, public servants, MPs and MEPs, with a view to preparing for and monitoring the 1996 IGC.

32 Federal Trust for Education and Research Round Table, ‘Building the Union: Reform of the Union. The Intergovernmental Conference of the European Union 1996’, (1995) 3 Federal Trust Papers p 26 f.

33 Zbid, p 6; European Parliament, supra n 23, pt 7. 34 This basically German initiative, led by Werner Weidenfeld, was carried out within a research project on

‘strategies and options for Europe’, conducted jointly by the ‘Forschungsgruppe Europa’ (University Mainz) and the Bertelsmann Stiftung.

35 Europaische Strukturkommission, in W. Weidenfeld (ed.), Europa ‘96. Reformprogramm fur die Europaische Union. Strategien und Optionen fur Europa (Verlag Bertelsmann Stiftung, 1994) p 42.

36 See Agence Europe, 11 February 1995, p 3. 37 CoR Opinion from 20 April 1995, CdR 136/95, p 8. 38 Commission, supra n 20, p 4. 39 European Court of Justice, supra n 25, pt. 20 ff.



considers at least basic social rights to be necessary within the internal market40. The constitution proposed by the Herman Report includes in its Title VIII a list of ‘Human Rights Guaranteed by the Union’. The list has 24 items, ranging from the right to life, the freedom of thought (including the right to conscientious objection) and protection of the family, to some social rights such as the right to work, and collective social rights, including the right to strike. The Court of Justice would be responsible for actions by individuals claiming violation of these human rights by the Union4’. The European Parliament urges the ‘inclusion of an explicit reference in the Treaty to the principle of equal treatment irrespective of race, sex, age, handicap or religion (including mentioning the fundamental social rights of workers set out in the [EC Social] Charter, enlarging upon them and extending them to all citizens of the Union)’. A ban on capital punishment and the application of provisions on equal rights in the Treaty, not only economic rights but all aspects of equality for women, are also called Furthermore, Parliament demands ‘a clear rejection [in the Treaty] of racism, xenophobia, sexism, discrimination on grounds of a person’s sexual orientation, anti-Semitism, revisionism and all forms of discrimination and [a] guarantee [of] adequate legal protection against discrimination for all individuals resident within the EU’43.

A specific provision on xenophobia and racism was also requested in ‘The Elements of a Spanish Position’44, and on several occasions by the Commissioner responsible for social affairs, Padraig Flynn. This would appear to be one matter where consensus on the appropriateness of acting at the European level is a realistic perspective. The intergovernmental negotiations would also be eased by the fact that xenophobia and racism have not yet become a very common issue in existing national constitutions. This is quite clearly in contrast with many other fields of prospective European fundamental rights, which is why clashes of culture and values might hinder ready compromise at the IGC. Despite all the political and legal obstacles, however, it is hard to see how the question of fundamental human and social rights could be left out of any constitutional text that aims to serve as a reference point for human identities.

IV The Future of the Three-Pillar System

While adding a third pillar to the Union (the second had already been introduced by the Single Act), the Maastricht Treaty nevertheless calls for a reassessment of the pillar structure45. That the new area of cooperation in justice and home affairs (JHA) was left outside the ordinary Community framework not only means that different and far less democratic decision-making rules are applicable, but also that the Court of Justice is not competent in this sector. Furthermore, the present three-pillar structure has done nothing to increase the transparency of the Union’s framework. The ongoing debate has suggested two possible policies against this background: either to merge the pillars (or at least the third into the first pillar) or to improve their structure.

4o Europaische Strukturkommission, supru n 35, p 42. 4 1 Herman, supru n 4, Article 38 of the proposed constitution. 42 European Parliament, supru n 23, pt 7; so far, there seems to be consensus in the Reflection Group on a

condemnation of racism and xenophobia, as well as on a generalized equality principle, see supra n 26, pp 18 ff.

42 European Parliament, supru n 23, pt 7. 44 Agence Europe, 11 March 1995, p 6 . 45 See Article B-5 TEU.



The Economic and Social Committee (ESC), for instance, recommends giving ‘the Community responsibility for justice and home-affairs policies’, arguing that ‘these issues are too important and too sensitive for European citizens to be confined to the intergovernmental sphere without democratic checks, at the risk, inter aliu, of creating two speeds and di~crimination’~~. It furthermore points to the need to achieve consistency between commercial policy, economic development cooperation and foreign and security policies (CFSP), and consequently calls for a unitary decision- making framework47. Taken together, these two demands add up to a merging of the three pillars. If the proposed constitution in the Herman Report4* were to be adopted, the three-pillar system would also disappear completely. Among the academic contributions, the Federal Trust Round Table considers the transfer of the third pillar into Community competence as the simplest and best solution, taking into account its conclusions against the background of the necessity for majority voting and improved participation by the European Parliament49. In contrast, the Guena ReportSo is strongly opposed to a merger of the second or third pillar into the first, stating that: ‘In these sectors specific modes of co-operation and decision-making are necessary’S1. Rather, the character of intergovernmentalism should be reinforced and new, efficient institutions set up, such as separate Secretariats-General for each of the pillars and a European Senate of representatives of national parliament^^^.

A more pragmatic means of simplifying the Union’s architecture might be to adapt the second and third pillars to the most pressing demands, while other aspects such as voting procedures, right of initiative, and types of legal instruments might remain distinct. At the centre of demands for reform is the role of the Parliament and the Courts. The European Parliament has asked for shared democratic accountability between itself and national parliaments on matters not forming part of the first pillar53. It also calls for a strengthening of the roles of the European Court of Justice, the Court of Auditors and the European Parliament itself ‘in those areas where there is currently inadequate scrutiny at European level’ - CFSP, Economic and Monetary Union (EMU) and JHAS4. The Court of Justice has explicitly requested an extension of its competences to those areas covered by the second and third pillars5s.

In contrast, the Commission has suggested that the positions of the second and third pillars are dissimilar. Concerning the CFSP, it appears satisfied that ‘Parliament plays a role similar to that of national parliaments in relation to national foreign policy’. However, it states that matters of JHA ‘warrant a greater degree of parliamentary control especially where binding legal instruments are involved’, since ‘questions in the area of justice and home affairs are likely to have a direct effect on

46 Economic and Social Committee, The 1996 Intergovernmental Conference: The Role of the Economic and Social Committee, ESC Bureau Report, Brussels, 26 April 1995, CES 273195 fin, 4 May 1995, pt 1.5.9.

47 Ibid, pt 1.5.10. 48 See Herman, supra n 4, Articles 41 ff. of the proposed constitution. 49 Federal Trust, supra n 32, p 31. 50 Presented on behalf of the delegation of the French Senate for the European Union by Senator Yves

Guena on 19 February 1995. 5 1 Y. Guena, Rapport d’informalion no 224, deuxieme session extraordinaire 1994-1995 du Stnat, sur la

rtforme de 1996 des institutions de l’linion europtenne, p 9. 52 Ibid, pp 43 ff. s3 European Parliament, supra n 23, pt 3.iii. 54 European Parliament, supra n 23, pt 4 and 23.k 55 European Court of Justice, supra n 25, pt 4.



individuals’ basic rights and public freedoms’56. Similarly, the Federal Trust Round Table sees ‘no valid justification for excluding the Court’ from JHA5’, while it argues that the Court of Justice should have jurisdiction in the field of the second pillar ‘at least where the rights of individuals are affected, and perhaps as regards the fulfilment of Treaty procedures and obligations as

From a democratic theory viewpoint, one must oppose ‘the weakness, not to say the absence, of democratic control at Union level in the fields of activity where the intergovernmental process still holds away’59. Even concerning the second pillar, there is no convincing reason to continue excluding foreign and security policy from democratic and judicial control. The restriction of this area to governmental policy and therefore to intergovernmental bargaining clearly corresponds to long-standing tradition. Nonetheless it is incompatible with an enlightened policy towards democratisation of the Union. At least the pursuit of this more pragmatic and hence probably consensual strategy, i.e. not completely merging all three pillars but aiming at full judicial and parliamentary control over them, seems recommendable. At the same time, different decision-taking rules for highly sensitive areas of the CFSP, such as unanimity or opt-outs if a Member State is out-voted, could remain in operation. This brings us to another fundamental concern of the 1996 IGC: how to manage the increased structural diversity among up to 30 Member States while still seeking to maintain unity, which has been the central aim of European integration.

V Flexibility within Unity: Variations in European Integration? The prospect of a doubling in the number of Member States in the near future, bringing with it increased structural diversity, has made the subject of differentiation within the project of European integration ever more topical. The concepts put forward below are located on a continuum which extends between poles of unity on the one hand, and flexibility on the other.

A The Models

Under the most ‘unitarian’ solution, all ‘common’ policies are conducted by all members of the Community jointly. Thus, no flexibility in terms of participation in principle, or even over time, is allowed for. Departing from this original pattern of the European Economic Community, cooperation outside the Treaties, such as the European Monetary System and the Schengen Agreement, has already been taking place between some of the Member States for a long time. In terms of primary EC law, however, the concept of a unitarian Community was finally given up at Maastricht, where opt-outs from agreed-upon political goals were granted to the UK and Denmark.

Within a more flexible model of European integration, three criteria are useful for categorisation: goals (are they shared by all Member States or not?), speed of goal achievement (are some members given more time than others to reach specific goals?) and, finally, independence for single members concerning opting-in or opting-out (only in groups? at any time?).

56 Commission, supra n 20, p 14. 57 Federal Trust, supra 32, p 26. 58 Ihid. 59 Commission, supra n 20, p 18.



Within the extremely flexible option of an ‘a la carte Europe’ or ‘pick-and-choose Europe’, each Member State would individually decide which policy areas ‘on the menu’ it wants to participate in, without in principle being concerned by the effects on or costs to the others. As such, no common goal exists and maximal flexibility for the single Member State is maintained. A first step towards this strategy is the opt-out of the UK from the social policy innovations included in the Maastricht Treaty. In its most far-reaching variant, this model would allow for national choices to be reversed at any given point in time, subject only to prior notification to the European partners, and not only in IGCs.

In contrast, a ‘Europe of several speeds’ or ‘multiple tracks’ implies that all Member States jointly decide on policies to pursue (common goals), but then allow for temporary derogations for those members which cannot or do not want to proceed at the same speed as others. Granting transitional periods to new Member States and the EMU as provided for in the Maastricht Treaty are examples of such a strategy60.

Between the two options of ‘pick-and-choose’, with its maximum flexibility concerning goals and participants, and a ‘Europe of multiple speeds’, several more concepts may be located on the continuum. For instance, a ‘hard core’ of EU Member States (or Kerneuropa) could be formed, implying that an inner circle of countries would participate in all policy areas included in the Treaties, while the other members that cannot or do not wish to do so would constitute less involved layers around them. A slightly more cohesive concept, on the other hand, is that of ‘variable geometry’, as all Member States would have to participate in some European policies, but diverse groups of members could participate in further fields of European activity without, however, as much flexibility for individual members as in the ‘pick-and-choose’ model. In a nutshell, the ‘hard core’ model means that some members participate in all policies, whereas ‘variable geometry’ implies that all members participate in some specific areas. Clearly, these concepts are not mutually exclusive, but rather focus on different aspects of the question. What complicates an overview of the present state of the debate is the fact that the notions outlined above often appear in diluted forms or are even applied unsystematically.

B Statements by Politicians and the EU Institutions

The clearest position might be attributed to the present British government. By arguing that greater flexibility provides the only possible means of building a Union which could ultimately number 20 or more Member States, Prime Minister Major promotes the concept of a ‘pick-and-choose’ Europe, in which each government may decide whether or not to participate in any given European policy, but also in which everybody should be allowed to participate everywhere6’. So far, this option has been rejected by most other governments, which rather promote some variant of the ‘variable geometry’ model. In many cases, the upholding of a single institutional framework is advocated62.

The German CDUKSU paper, for instance, although not explicitly based on a ‘variable geometry’ or ‘multi-speed’ model, strongly opposes a ‘Europe a la carte’. In

6o However, the British and the Danes managed to obtain the possibility of opting out in Protocols to the

6 1 Major, ‘Europe: A Future that Works’, manuscript of a speech delivered at University of Leiden, 7

6 2 See also Reflection Group, supra n 26, p 6.

Treaty.

September 1994.



order to avoid any drifting apart of the different regions of an ever bigger Union, it proposes the strengthening of a ‘hard core’ of Member States, with France and Germany together with the Benelux countries constituting an ‘inner core’. These countries should not only participate in all Union policies but would also act more closely and be more Union-oriented than the others. Furthermore, they should be the motor of initiatives, particularly regarding the new Maastricht policies such as in the monetary, fiscal, economic and social areas63. However, the paper is not very precise in terms of how to put this model into practice, especially considering the heterogeneity among even the ‘core states’. Nor does it elucidate on the type of relationship this ‘inner core’ would have with the rest of the Member States, particularly in institutional terms.

A development towards more flexibility has taken place in France. In April 1994, the Minister for European Affairs, Lamassoure, proposed measures aiming to create a contagious effect upon the other Member States by giving them an incentive to participate in all the Union’s policies64. More recently, however, Prime Minister Balladur has suggested that ‘[Wle should move forward with those who can and want to do so in each area where progress is necessary - currency, defence, internal security amongst others. We shall thus build circles of stronger co-operation which will not necessarily group together the same Member States on each subject’65.

The Spanish government has on several occasions stated that some flexibility in the sense of ‘variable geometry’ is inevitable66, but that there should not be any irreversible exclusion on the one hand, nor a ‘pick-and-choose Europe’ on the other. By contrast, the Spanish opt for a strengthening of the overall coherence of the Union and promotion of convergence for those lagging behind67. However, countries should not be prevented from leaving the central core.

Only a few of the EU institutions discussed this issue in their 1995 reports. The Commission favours the concept of differing speeds of integration, provided that this happens in a single institutional framework and is centred on a common objective68. As the Commissioner for constitutional questions recently put it: ‘Even when a policy only concerns a minority of Member States, institutional unity should not be affected, notably regarding the Parliament’s role of political control which should extend to all areas of ~o -ope ra t ion ’~~ . The Commission obviously regrets current tendencies towards an ‘Li la carte Europe’, at least in the case of social policy7o, and strongly opposes any future extensions in this regard.

The European Parliament also rejects the option of a ‘pick-and-choose Europe’. In fact, one of several conditions set out by Parliament is that any flexible arrangements, due to the increasing diversity of the EU, should not lead to the possibility of individual ‘pick-and-choose’ situations. Furthermore, such arrangements must not, according to the European Parliament, undermine the single institutional framework, the acquis communautaire, the principles of solidarity and economic and social

63 CDU/CSU, supra n 7, pp 7 ff. 64 See Agence Europe, 18 April 1994, p 7. 65 Cited from Agence Europe, 30 December 1994, p 1. 66 See Agence Europe, I 1 February 1995, p 3; 1 I March 1995, pp 4 ff. 67 Spanish Government, ‘The 1996 Conference ~ Bases for Discussion’, cited from Agence Europe, 1 1 March

1995, pp 4 ff. Commission, supra n 20, p 6.

69 Marcelino Oreja Aguirre, Agence Europe, 26 April 1995, p 4. 70 Commission, supra n 20, p 6.



cohesion throughout the EU, or ‘the principle of equality of all States and citizens of the Union before the treat^'^'. Control ‘over those Union policies which are pursued by a limited number of Member States on a temporary basis’ (a formula which indicates that the European Parliament in fact prefers a more cohesive ‘multiple speed’ solution) should be exercised by the European Parliament as a whole7*. The ESC does not address the overall problem, but condemns opt-outs in social matters73.

C Expert and Scholarly Viewpoints

If we turn to more academic positions, an ‘d la carte Europe’ is again rejected by the majority. Even the ECG provides for a core area of policies without opt-outs, if only concerning ‘obligations accepted by qualified majorities as necessary to maintain free and open markets’74. Outside this policy nucleus, however, they opt for a ‘pick-and- choose’ model.

In contrast, the CEPS rejects any such pattern, even if moderated, because it ‘reduces the essential obligations of EU membership to a bare minimum, thereby destroying many of the essential linkages that underpin. the present package and reducing the single institutional framework to a marginal role’75. It also dismisses the ‘hard core’ model because it might have a similar effect ‘since the single institutional framework would in practice be reserved for “lesser” business and the obligations, let alone the rights of weaker states, would be bound to be reduced if not to totally d i~appea r ’~~ .

The CEPS develops five guiding principles for any recommended path towards greater diversity. First, opting-in should be the norm, opting-out the exception. Second, all Member States should participate in the single institutional framework and, third, those who opt out should have less than full rights in the institutions in relation to the business in which they do not intend to participate. Fourth, members should be obliged to accept the majority’s droit de regard, including the right of their partners to define their own non-conformity as destabilising or unacceptable. Finally, the Treaty should incorporate detailed provisions to deal with unacceptable or destabilising behaviour in articles that apply across the board77. They suggest that making opting-out a ‘normal business’, would inevitably tend to dilute the notion of the Union and reduce it in due course to no more than an association of states7*.

Charlemagne, too, perceives shortcomings in flexible models79. They discuss, for instance, the primacy of those policies carried out by all Member States over those of only a group of states; problems concerning external competences vis-d-vis third countries; and the functioning of institutions in those fields without overall Union competence. Here the authors differentiate between those institutions which carry out their tasks in complete independence and in the general interest of the Union, such as

European Parliament, supra n 23, pt 15. 72 Ibid, pt 16. 73 ESC, supra n 46, pt. 1.5.7. 74 ECG, supra n 4, p 5 (2a). 75 CEPS, supra n 19, p 56. 76 Ibid. 77 Ibid, pp 56 R. 78 Ibid, p 57. 79Charlemagne is the pseudonym for a group of anonymous members of the cabinet of the former

Secretary-General of the Council of Ministers and current Danish representative to the Reflection Group, Niels Ersbdl.



the Commission, the Courts and possibly the European Parliament on the one hand, and the Council on the other. For the first group, the paper advocates continued participation of those nationals whose Member States opt out on a specific policyso, which in fact corresponds to the current practice in social policy. Finally, any ‘variable geometry’ must, in the eyes of Charlemagne, respect the acquis communautaire without stepping backs1.

Justus Lipsius judges the concept of multi-track Europe to be insufficient to resolve the problems which will arise, implying that among a group of almost 30 members, it might well not be possible to find agreement on common goals in all important areas, even if temporary derogations are permitted. A ‘Europe a la carte’ is simply not conceivable to him ‘because it would be unable to provide for the necessary balance between rights and obligations among all Member States because it would entail distortions of competition, negate the concept of a single market, prevent the EU from acting as a single entity in the outside world, etds2.

However, Lipsius judges the possibility of ‘variable geometry’ to be interesting and, despite the limits and difficulties it could raise, necessary. He recommends that a number of principles, corresponding to those suggested by the aforementioned authors, be respected, such as a single institutional framework. ‘A large, thick, strong, common base’83 should incorporate all policies in which divergences among Member States could give rise to significant distortions of competition. Even for the optional policies outside of this common core, a minimum of rules should be mandatory so that derogations never become full and/or absolute. Moreover, Lipsius proposes that the Treaty should provide for the possibility of adopting compensatory measures in cases of distortion of competition due to non-participation. A rule of non-interference should guarantee that particular cooperation does not affect common policies.

To sum up, ‘variable geometry’ models, which nonetheless respect both the acquis comrnunautaire and the integrity of European integration in terms of external representation and internal cohesion, would appear to hold the lead among opinions at present.

D Let-Out Clause

One way of solving at least some of the problems of differing aspirations and perceptions regarding the further development of the Union could be the introduction of a so-called ‘let-out’ clause. There are two aspects to this possibility.

The first aspect concerns the predicted complications during the IGC with the United Kingdom, which seems at the moment to be the most reluctant to take part in any progress on the path towards further integration. The European Parliament has suggested that consideration be given to proceeding without the minority if no unanimous decision can be reached at the 1996 IGC, ‘despite broad agreement among a majority of Member States and peoples of the European Union’. This could be made effective by ‘instruments to enable a Member State to leave the EU, subject to meeting certain criteria’84.

8o Charlemagne, ‘L‘Equilibre entre les Etats membres’, in Volume in Honour of Niels Ersbdl (Bruxelles,

8 1 Ibid, pp 77 ff.

83 Ibid, p 16. 84 European Parliament, supra n 23, pt 17.

1994) pp 74 ff.

Justus Lipsius, op cit n 9, p 15.



The other aspect concerns mainly the prospect of further enlargement, as among the next group of candidates are some countries with comparatively short and weak democratic traditions. Since attachment to the ‘principles of democracy’ is a criterion of membership (Article F TEU), CEPS discusses what would happen if, as a result of a regime change, a Member State started to breach these principlesg5. One solution would obviously be to end its membership. More generally even, under the proposed EU charter of the ECG, ‘any Member State may decide to leave the Union under procedures that meet its own constitutional requirements’86. On the other hand, if a state ceases its membership in the Council of Europe on the grounds of violation of its Convention on Human Rights, it shall also cease to be a member of the Uniong7.

E Towards a Solution?

Quite obviously, the choice of more or less flexibility concerning opt-outs from European policies also touches basic political concepts. From the viewpoint of an advanced social market economy with relatively high social, environmental and consumer standards, there exists a strong interest in preventing any ‘pick-and-choose’ model which would necessarily imply a distortion of competition while having to maintain completely open markets. However, as far as policies which do not affect conditions of competition, such as defence, are concerned, the picture is indeed different. In the longer run, a certain degree of flexibility in such areas might even have a uniting impact, allowing for innovations to be initially tested amongst just a few.

Whatever the specific model of increased flexibility adopted, the main conditions developed in the debate as outlined above should be respected: a strong core of activities shared by all Member States, centred around an internal market and its flanking policies; maintenance of the single institutional framework and no stepping back from the present acquis communautaire, even a possible improvement as far as the UK’s social policy opt-out is concerned.

However, in addition to flexibility regarding the participation of individual members in a variety of areas chosen in principle for joint European policy, at least among some states, the current reform debate also focuses on a more specific attribution of single powers to the supranational level, possibly in a catalogue of competences.

VI Division of Competences between EU and Member States

To date, delimitation of the respective spheres of activity between the Union legislature and the Member States, as laid down in the Treaties, has been rather an allocation of functions than a concrete and unambiguous division of competences. Although European lawyers used to call it a system of ‘limited’ or ‘atributed’ powers (Einzelermiichtigungen), meaning that the supranational level can only act if there is a specific authorisation to be found in the Treaties, it is also acknowledged that some of these authorisations are quite comprehensive and allow for a very broad range of activities ‘to attain, in the course of the common market, one of the objectives of the Community’88. In the past, the Union legislator tended to make frequent use of these

85CEPS, supra n 19, p 35. 86 ECG, supra n 4, p 5 (2c). 87 Ibid, p 5 (2c); this was taken up by the Reflection Group, see supra n 26, p 19.

Article 235 EC; see also Article lOOa EC.



subsidiary competences. The so-called principle of subsidiarity in Articles A TEU and 3b EC was introduced at the last IGC in order to counterbalance the tendency towards centralisation. Article A TEU affirms that ‘decisions are taken as closely as possible to the people’; Article 3b EC renders the principle somewhat more operational, though by no means unambiguous, by requiring the Community to act only where the objectives ‘cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community’.

However, the political as well as academic discourse since the entry into force of the TEU has made it clear that this compromise formula falls short of a clear-cut legal solution to the problem of division of competences in a quasi-federal setting such as the EU. The issue is therefore very likely to be on the agenda of the 1996 IGC, and is definitely a major feature of the ongoing debate on reform.

A A Catalogue of Competences or Strengthening Subsidiarity?

The Europaische Strukturkommission, for instance, argues that the subsidiarity principle as formulated in Article 3b EC cannot satisfy the demands because it does not provide clear enough criteria for the division of competences. Instead, it leaves the decision to actors such as the Commission and governments, which cannot be expected to always apply it systematically or in a restrictive mannerg9. In contrast, a detailed catalogue of competences (Kompetenzkatalog) should, according to this group, describe the given division of competences as transparently as possible, and provide principles for further transfers as well as for the exercise of competences. Clearly, the aim of the Europaische Strukturkommission is a stable distribution of competences, contrasting what they see as the traditional trend towards ever more supranational policies. Therefore, its detailed catalogue of competences attributes in the case of all major policy areas primary and partial competences to either the Union or the Member Statesgo. For example, foreign policy, security and military areas are suggested as primary competences of the Member States, with partial competences for the Union (called CFSP) including coordination, mutual information, common actions and implementation decisions. On the other hand, fisheries and agricultural policies, for example, are suggested as primary competences of the Union, while national structural policies in the agricultural area are referred to as partial competences for the Member States. In general, primary competences of one level should allow only for interventions by the other level if an explicit enumerative partial competence has been provided. In the absence of subsidiary competence provisions like Article 235 EC, any further transfer of additional competences would only work upon ratification by the Member States. An interesting aspect of the Europaische Strukturkommission’s proposal is its inherent criticism that the EU interferes with competences of the Member States via financial incentives, for instance in the fields of education, health and culture9’. Therefore, restrictive enumeration of eligible financial transfers is suggested. The desire for European financial resources should not be a determining criterion for the transfer of competences in the long term. Furthermore, the Europaische Strukturkommission proposes submitting the Union to a generalised

89 Europaische Strukturkommission, supra n 35, p 17. 90 Ibid, pp 20 ff. 91 Ibid, p 21.



principle of loyalty, including respect for internal national structures within the exercise of Union policies92.

The proposal of the Europlische Strukturkommission has been welcomed by several commentators. The CDU/CSU paper endorses the idea of a strict list of c o m p e t e n c e ~ ~ ~ and the German Bundesrat requests a list of the Union’s compe- t e n c e ~ ~ ~ . While agreeing with the idea of a Kompetenzkatalog as proposed by the Europaische Strukturkommission in principle, the CEPS argues that it should not be accompanied by a total elimination of Article 235 EC:

“111-1 any healthy polity there must be room for the interplay of political forces to redefine the frontiers between the different levels of government as an[d] when circumstances change. Something like Article 235, remodelled perhaps to allow a stronger role for the European Parliament through the introduction of co-decision procedures, would therefore seem to be indi~pensable’~~.

Among the institutions, only the European Parliament explicitly addresses the matter. It warns that the ‘[elstablishment of a fixed list of EU and Member State competencies would be too rigid and too hard to achieve’. Article 235 EC should therefore be retained but used only in the last resort and with the European Parliament’s assenty6. In contrast, the ESC proposes that the cooperation procedure should be used and that consultation with the ESC should also be mandatoryy7. Justus Lipsius recommends keeping Article 235 EC because he continues to view it as necessary, for instance, in the setting up of new organs. However, he proposes the co-decision procedure and even suggests deleting reference to the Common Market in that provision. In general, he puts forward no major changes in the area of competences, in the belief that a clear-cut catalogue would be too difficult to establishy8. Similarly, the Federal Trust Round Table argues that a catalogue of competences would ‘require very thorough preparation, by what would amount to a constitutional conference’, and therefore concludes that ‘it is not a matter for the forthcoming IGC’99.

Another relevant matter of debate is the further elaboration of the principle of subsidiarity, either in combination with the drafting of the Kompetenzkatalog, such as the German Bundesrat requestsloO, or without it. For example, John Major has announced his intention to ‘block any attempt to extend Community competence to inter-governmental areas such as foreign affairs, defence and home affairs’, and his determination to ‘aim to strengthen subsidiarity which has already led to a reduction in Commission activity’101.

The ECG’s vision, too, clearly favours the national vis-ci-vis the supranational level. Thus, they envisage a restrictive catalogue of Community competences, the abolish- ment of Article 235 EC, and a strengthened subsidiarity principle. The ECG sets

92 Ibid, p 29. 93 CDU/CSU, supra n I, p 5. 94 Agence Europe, 1 April 1995, p 3. 9s CEPS, supra n 19, p 16. 96 European Parliament, supra n 23, pt 12.ii. In general, the European Parliament suggests that the IGC

should primarily concentrate not on transferring new powers to EU institutions, but on clarifying their respective roles (Ibid pt 18); see also Reflection Group, supra n 26, p 36.

97 ESC, supra n 46, pt 1.9. 98 Justus Lipsius, op cit n 9, p 41. 99 Federal Trust, supra n 32, p 28. IOOAgence Europe, 1 April 1995, p 3. LoLMajor cited from Agence Europe, 25 May 1995, p 2.



comparatively narrow limits upon the powers of the Union - without specific conditions for Union action being fulfilled, its bodies should not have any explicit powers102. Among the existing competences of the Union, a number would have to be withdrawn, for example in the areas of environmental protection and social policy. In cases where amendments to Union measures would pertain, in the view of a qualified minority of a ‘Chamber of Parliamentarians’, to the distribution of powers between the Member States and the Union, the final decision would lie with this Chamber, comprising national parliamentarians, which would be expected to protect national autonomy103.

In contrast, the Spanish government has shown itself to be a defender of the acquis communautaire and the competences of supranational institutions. It has stressed that a more explicit definition of the subsidiarity principle might even have negative repercussion^^^^. However, it suggested that national parliaments should have the right to address complaints to the Court of Justice on the grounds of subsidiarity. Klaus Hansch, the former European Parliament President, commented in this regard that: ‘This could be, under certain conditions, at least an improvement on the suggestion . . . [of a] Chamber of Subsidiarity’Ios.

But the ECG proposes going even further in the direction of renationalisation: if any of the judgements by the Court of Justice pertain to the distribution of powers, a Member State or a qualified majority of the Chamber of Parliamentarians might call for review for adjudication by the Union Court of Reviewlo6. Members of national judiciaries making up this additional Court shall therefore ensure that Union competences are not exceeded and that directly applicable Union law and the jurisdiction of the Court of Justice remain very limited. They argue that a ‘system of diversified law is much more likely to offer protection to individuals and to a decentralised system of Union government than according a dominant role to a single Court such as the Court of Justice that has a vested interest in the extension of a single superior law’Io7. Regarding the role of the European Court of Justice and the principle of primacy of EC law, the ECG’s proposal puts forward that ‘the next Intergovern- mental Conference must specifically reject the concept that there is a general hierarchy of authority to be developed in the Union’lo8. The Group is not concerned by the possibility that their ‘proposals in this area will be seen by some observers as challenging a significant part of the legal acq~is’~O~.

B No Escape from Politics?

Despite widespread criticism, especially in the legal sphere, mainly focusing on the difficulties of operationalising the subsidiarity principle in legal termsllO, it appears

lo* ECG, supra n 4, p 71 (3a). Io3 Ibid, p 8 .

Spanish Government, supra n 67, pp 4 ff. Io5 Hansch, ‘On Relations Between the European Parliament and National Parliaments’, speech delivered in

Brussels at the European Policy Forum, 23 January 1995 (1995) Europe Documents 1920127 January 1995 P 6.

Io6 ECG, supra n 4, p 9 (2c). lo’ Ibid, p 3. lo* Ibid.

Ibid, p 13. ] l o Which is hardly surprising since it is a genuine political principle: there is usually a considerable degree of

political judgement and discretion involved in deciding how something might be ‘better’ achieved in politics.



that in political terms the principle of subsidiarity has worked quite well. Since Maastricht, the Commission has justified its proposals and given its reasons for believing that the legislative act in question is adequate for regulation at the European level. Both Parliament and Council have discussed the need for the policy project in terms of subsidiarity. Even though one might eventually argue that the EP, being a supranational institution, has no incentive to avoid legislation at the European level, the same can hardly be said of the Council of Ministers. The members of the latter represent not the Union’s interests, but those of the Member States. Furthermore, ministers are politically dependent on their national parliaments, which in turn are the main losers in terms of competences if activities are shifted to the supranational level. Therefore, the Council seems well equipped and in an adequate political position to see that the principle of subsidiarity be applied with care. Most national second chambers which represent the states in a federation, such as the Austrian and the German Bundesrat, are considerably weaker than the states’ chamber at the EU level. Given these structural conditions and the experience of restrictive use of EC competences during the past two years, it could be argued that the project of a genuine Kornpetenzkatalog is not one of high priority, except according to a political position which seeks to restrict joint policy-making at the European level. In any case, acknowledgement must be made of the fact that the decision to formulate specific policies at one or the other level will always be a political one, whether it be made through a single stroke at the IGC by the drafting of a catalogue, or on a case-by-case basis as has been employed so far by ‘enumerated competences’ in connection with more general subsidiary empowerments such as Article 235 EC.

There is, however, at least one point of consensus emerging from the relevant expert contributions: the IGC should at a minimum try to simplify the division of competences in order to make it more transparent for the uninitiated citizen seeking to understand what the European polity is all about.

VII Conclusions During the debate preceding the political negotiations, a convergence of views seems to have emerged not only around this division of competences, but also with respect to the question of whether a European constitution should replace the existing intricate treaty framework and whether the pillar structure should be merged: Simplification and increased transparency are the keywords. They are also the major issues in the ongoing debate on institutional reform’ l l . However, the forthcoming IGC will most likely not be remembered as ‘the conference at which everything was simplified’. By contrast, any solution to the issue of making the Union’s structure more flexible while preserving its unity as far as possible will tend to make the constitutional framework even more complicated than it is now.

The issues dealt with here are different in yet another dimension to the institutional and procedural questions on the agenda for 1996. Concerning the latter, no real ‘qualitative leaps’ seem to be necessary in order to achieve considerable improvements with regard to democratic reform of the Union’s policy-making structure. By contrast, simplification of the constitutional framework, solving the issue of the protection of fundamental rights, and operationalising the principle of subsidiarity with a view to

I l l Falkner and Nentwich, op cit n 3, pp 118 fT



establishing a proper catalogue of Union competences are fundamental questions which can hardly be dealt with in a pragmatic step-by-step manner. They need to be addressed with firm political commitment, something which, at the time of writing, seems unlikely to emerge.

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Intergovernmental Conference 1996: Which Constitution For The Union?

Documents

Transcript of Intergovernmental Conference 1996: Which Constitution For The Union?