Bridging the gap between citizens and Brussels: towards greater legitimacy and effectiveness for the European UnionOctober 10, 2005 - nr.27
The AIV stated in chapter I that ‘the ultimate test of reforms should be whether they serve to strengthen the Community method.’ Ultimately, this model is the best way of guaranteeing enhanced effectiveness, legitimacy and cohesion, and of preserving a certain balance between large and small Member States. A series of recommendations have been made for this purpose in this report. These proposals (with the exception of the recommendations for the medium term) are regarded by the AIV as the minimum that must be achieved during the next IGC if the European Union is still to function after enlargement as an effective framework for integration and cooperation.
The AIV repeats below all the proposals made in this report. It also indicates in respect of each recommendation whether or not a treaty amendment is required. = no treaty amendment, = treaty amendment.
As regards constitutional reforms the AIV recommends that:
- the constitutional order should be improved and clarified in such a way as to allow further ‘constitutionalisation’ of European cooperation. This could be done by drawing up a clear and readable Basic Treaty that helps to define the image and identity of the European Union and affords Europe’s citizens greater legal certainty as regards primary legislation.
- the Basic Treaty should include provisions on:
- the objectives of the European Union;
- fundamental rights;
- fundamental principles, such as equality, subsidiarity and proportionality;
- the institutions;
- the main institutional rules such as those governing majority voting, weighting of votes, legislation and codecision;
- definition of powers;
- the instruments for achieving the European Union’s objectives;
- the own resources for funding the European Union’s activities;
- the hierarchy of norms;
- the modes of ‘enhanced cooperation’ between a given number of Member States;
- the customary final provisions, regarding matters such as treaty ratification and amendment, accession and authentic language versions.
- Protocols should be added to the Basic Treaty, containing provisions on the policy for implementing the objectives.
The remaining recommendations deal only with the subjects which the AIV believes should be approached differently in the Basic Treaty than in the current Treaties.
As regards fundamental rights, the AIV considers that the Basic Treaty should be framed in such a way as to provide an optimal safeguard for the rights of citizens of the European Union. In the opinion of the AIV, an optimal safeguard would be created if:
- the European Union/European Community were to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the European Social Charter (ESC) and the human rights instruments of the UN and the ILO. The Basic Treaty should contain a provision that allows for such accession.
If this option is not feasible, the AIV would prefer the adoption of a step-by-step approach. The AIV recommends for this purpose that:
- the Basic Treaty should contain a section on fundamental rights based on the Charter of Fundamental Rights.
If this too is not feasible, the AIV recommends that:
- the preamble to the Basic Treaty should contain a reference to the Charter of Fundamental Rights, which should be attached to the Basic Treaty as a declaration (the AIV does not favour the incorporation of the Charter of Fundamental Rights in full into the Basic Treaty). In addition, the present Article 6 of the EU Treaty and its reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) should be included in the Basic Treaty and supplemented by a reference to the Charter of Fundamental Rights in such a way that the Charter of Fundamental Rights affords additional protection in areas not covered by the ECHR. This could be worded as follows: ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms […] and with due observance of the Charter of Fundamental Rights, and as they result from the constitutional traditions common to the Member States, as general principles of Community law.’
As regards the subjects of weighting of votes, own resources for funding EU activities and the hierarchy of Community acts, the AIV recommends that:
- the provisions on the weighting of votes should be included in their entirety in the Basic Treaty, and
- the arrangements on the weighting of votes agreed in the Nice Council Meeting should be reviewed for the purpose of making them clearer and more intelligible for Europe’s citizens. The AIV abides by its earlier recommendation that the Member States should be divided into six clusters and that each Member State in a given cluster should have the same number of votes. Countries acceding to the European Union should be assigned to these clusters on the basis of the size of their population, provided that the ‘blocking minority’ system is maintained.
- the powers of the European institutions, which are now scattered throughout the Treaties, should be grouped together.
- the principle that the European Union should provide for the resources it needs in order to achieve its objectives and implement its policy should be included in the Basic Treaty;
- the provision concerning the way in which the Union should provide for these resources should be included in a Protocol to the Basic Treaty;
- decisions in the Council on the manner of financing and on expenditure should be taken by reinforced qualified majority. The European Parliament should have a right of codecision by qualified - or reinforced qualified - majority. The distinction between compulsory and non-compulsory expenditure should be dropped and the right of amendment by the European Parliament should be extended to all categories of expenditure.
- a provision on what is termed ‘the hierarchy of Community acts’ (or hierarchy of norms) be included in the Basic Treaty in order to regulate this distinction. In the case of legislation proper, the European Parliament should be involved through the codecision procedure and the Council should decide by qualified majority. Secondary legislation could then be introduced by means of simplified procedures.
As regards amendments to the Basic Treaty and the Protocols, the AIV recommends that:
- the Member States and the national parliaments should have the right to approve amendments to the Basic Treaty. The procedure laid down in Article 48 of the Treaty of the European Union could continue to apply for this purpose. In addition, greater public support should be generated by arranging for the amendments to be prepared in a convention.
- a relatively simple ‘Community’ procedure could be created for amendments to Protocols to the Basic Treaty; this would involve a decision by the Council on the proposal of the European Commission by a qualified majority (or, possibly, reinforced qualified majority) and the assent of the European Parliament (‘avis conforme’).
- assent to proposed amendments to Protocols by a qualified majority of the national parliaments (to be determined in accordance with the rules governing the weighting of votes in the Council) should be required within a predetermined period.
The AIV makes the following recommendations for institutional reform:
It recommends with regard to the European Commission that:
- the President of the Commission should be elected by the European Parliament and that this election should be confirmed by the European Council by qualified majority;
- the new President of the Commission should take into account the recommendations of the Member States when assembling his or her team. The composition of the new Commission should require the approval of the European Parliament. Finally, the appointment should be made by the European Council by a qualified majority of votes. In the event of a difference of opinion between Council and Parliament, the procedure should be repeated until a Commission has been appointed.
- the individual Commission members too should be accountable to the European Parliament.
- the existing provision under which the Council grants the Commission a general power to adopt implementing measures should be included in the proposed Basic Treaty. This principle of delegation should in practice be translated into a review of the procedure of the management committees, in such a way that they only play an advisory role in the future. The Commission should adopt the implementing measures which it considers necessary and should, if necessary, be accountable for them to the European Parliament. This will help to establish a clear hierarchy of Community acts. Only in respect of subjects on which the Council still decides, in principle, by unanimity can there be scope for review of an implementing measure of the Commission which is contrary to the majority opinion of the committee. However, unanimity would be required for such review.
- the Commission should be reduced to a maximum of 15 members. Member States may nominate candidates. In addition, the Nice agreements about the rotation system should in practice be implemented in such a way that large Member States are represented on the Commission relatively more often than small ones.
The AIV recommends with regard to the European Parliament that:
- the 2004 elections to the European Parliament should be held on the basis of European electoral lists, and the Treaty provision allowing financial support for the creation of political parties at European level should be translated into practical measures.
- the role of the European Parliament in the appointment of the President of the Com-mission should be strengthened and individual members of the Commission too should be politically accountable to the European Parliament for their own portfolio. However, the Commission, as a body, should remain accountable for the general policies in these areas of responsibility. The European Parliament should be able to compel, by means of a simple majority, the resignation of both the European Com-mission as a whole and individual Commissioners.
- codecision should be extended to all subjects of primary and subordinate legislation on which the Council decides by majority vote.
- the conciliation procedure should be conducted by a Coordination Council and in public session.
- the European Parliament should obtain the right of assent (‘avis conforme’) to the amendment of a Protocol to the Basic Treaty.
- the difference between compulsory and non-compulsory expenditure should be abol-ished so that the power of the European Parliament can extend to the entire Euro-pean budget, including expenditure on agriculture and the structural policy.
The AIV recommends with regard to the Council that:
- the European Council should concentrate on its original function of outlining policy for the development of the European Union and setting political and administrative priorities. Its agenda should be cleared of one-off items and should, in particular, no longer provide scope for negotiation on topics that cannot be resolved at a lower level. It should be possible to avoid these problems once the Coordination Council has been established, since it will be responsible for preparing the agenda of the European Council and, in particular, preventing detailed points of dispute from being referred for settlement at a higher level.
- the European Council should increasingly take decisions by majority voting and limit its efforts to achieve consensus. Abandonment of the requirement of unanim-ity in the European Council is essential, particularly in an enlarged European Union. The Presidency has an important role to play in this connection.
- the General Affairs Council should be transformed into a CFSP (Common Foreign & Security Policy) Council and concentrate on subjects of foreign policy in the widest sense of the word, including trade policy, development cooperation and the acces-sion of new members.
- a special Coordination Council should be established to coordinate the overall activities of the European Union; this should consist of the responsible members of government at national level for European policy. These members should have a sufficiently broad national mandate to play the role assigned to them effectively. The AIV makes no recommendations as to the nature of these mandates, since this is a matter for the Member States themselves. The Coordination Council should be responsible in particular for:
- preparing the agenda and conclusions of the European Council; the Coordination Council should also ensure in principle that legislative activities are excluded from the agenda of the European Council;
- checking the progress of the activities in the Specialist Council meetings and identifying any inconsistencies between policies in order to safeguard the cohesion of overall EU policy;
- checking the progress of work commissioned by the European Council;
- checking implementation of the principles of subsidiarity, proportionality and effectiveness;
- conducting conciliation talks with the European Parliament in the context of codecision.
The AIV recommends with regard to the rotating Presidency that:
- the system of appointing the Presidency be changed in view of the forthcoming increase in the number of Member States and the fact that most of the new mem-bers will be small countries. The Presidency of the European Council and the Spe-cialist Council meetings should be replaced by a system in which the Chairman does not represent a Member State. The relevant Council meetings should elect the Chairman by a qualified majority from among their own number for a two-year term of office. Re-election should not be possible. If a Chairman ceases to hold office at national level, the relevant Council should elect a new Chairman.
The AIV recommends with regard to the European Court of Auditors that:
- the Court of Auditors should have a maximum of five Members.
As regards the subject of differentiation, the AIV is in favour of enhanced cooperation, subject to certain conditions, but would not for the time being recommend the estab-lishment of a permanent ‘federalist core group’.
As regards the medium term, the AIV recommends that the Community method should be significantly strengthened. An essential element of this would be a central role for the European Commission, which should be restored to the role of legislator, in cooper-ation with the European Parliament, as originally envisaged in the Treaties. The Parlia-ment should comprise a Chamber of States, consisting in the rather longer term of directly elected members, and a Peoples’ Chamber. At the same time, the Third Pillar should be gradually integrated into the First Pillar and there should be greater coher-ence between the First and Second Pillars.
As regards diplomacy, the AIV recommends that:
- more use be made in the short term of the scope for majority voting already provid-ed by the Treaties. The 2004 IGC should go further and, against the background of enlargement, introduce qualified majority voting for all Second Pillar decisions taken in both the CFSP Council and the European Council, in so far as the issue under consideration is not the deployment of military or police resources.
- the CFSP Council should determine what is (and is not) a priority, ensure proper coordination with all relevant policy fields and give its conclusions a sound financial basis.
- greater responsibility for preparing and implementing policy should be assigned to groups of Member States which have (or wish to develop) a clear interest in the rel-evant field, for example because they disburse funds or deploy aid workers or pos-sess specific expertise relevant to the policy fields or the region or country con-cerned.
- the activities of the diplomatic missions should be coordinated more vigorously than before, and the EU missions too should be involved.
The AIV is not in favour of a ‘personal union’ between the High Representative and the Commissioner for External Relations and recommends that the greater coherence of the First and Second Pillars should be promoted by other means, namely by:
- giving the High Representative a formal right of initiative, which he would exercise in consultation with the European Commission (i.e. the Commissioner for External Relations). This could result in a joint initiative. If the High Representative were to make proposals in fields for which he has a mandate, the Council could disregard them only by a decision passed by a qualified majority.
- arranging for the European Commission to exercise its right of initiative in the Second Pillar in consultation with the High Representative.
- greatly increasing the funds made available for the CFSP.
The AIV would add that if it is nonetheless decided that the two positions should be held by the same person, it should be stipulated as a condition that the independence of the official concerned as a collegiate member of the European Commission is guar-anteed, for example in the job description, and that the position of Secretary General should not be allocated to this official.
As regards action in times of crisis and the deployment of military and/or police resources, the AIV recommends that:
- provision for a ‘manifest crisis’ procedure under the CFSP be included in the rele-vant Protocol. This procedure should ensure that a group of Member States can be quickly formed and take rapid and effective action on behalf of the European Union and its Member States, subject to approval or correction by the competent bodies of the European Union in plenary session. The High Representative and the Euro-pean Commission should be fully involved in the deliberations of this limited group of Member States, which should designate one of their number to be leader. Deci-sions of this group on matters of a non-military nature would be deemed to have been approved by the Council, unless the Council decides otherwise by qualified majority. However, decisions of a military or defence nature would require confirma-tion by the Council by unanimous vote (subject to constructive abstention). Where appropriate, the group would make use of the military structures of the ESDP.
- the relevant procedure and action be the responsibility of the CFSP Council, which may call in the Justice and Home Affairs Council where appropriate (for example in cases involving the fight against terrorism).
As regards the Third Pillar, the AIV recommends that:
- the Third Pillar be gradually transferred to the First Pillar. In so far as this cannot be achieved at the 2004 IGC, the IGC should provide that a decision on this transfer may be taken without holding a new IGC, for example by reinforced qualified majority vote and/or the assent of a majority of the national parliaments, as advocated else-where in this report for amendments to a Protocol. In this way, the decisions on the remit and powers of Europol and Eurojust could in due course be taken using the Community procedures in the First Pillar. The cooperation would then remain a mat-ter for national authorities, and the role of the Commission would be to facilitate rather than implement.
As regards the coordination of economic and monetary policy in the European Union, the AIV recommends that:
- the different coordination procedures be merged and that although the degree of compulsion in the various policy fields may differ it should not be entirely absent even from the weakest form of coordination.
- Member States be obliged to notify the other Member States and the European Commission in good time about economic measures and budgetary developments which may affect the economy of the entire euro area. The Member States should also be obliged to give timely notice to the Commission of the main aspects of their stability programmes.
- the European Commission be given the power to send its advice on the assessment of national budgets to the parliament of the Member State concerned in appropriate cases.
As regards candidate countries and the euro zone the AIV recommends that:
- the broad guidelines for the new Member States should be drawn up as quickly as possible. The primary aim of the broad guidelines that will be drawn up for the new EU Member States (which are not yet EMU members) in the regular course of the policy coordination procedure after accession must also be to achieve real convergence.
As regards the European Central Bank (ECB), the AIV recommends:
- the introduction of a balanced rotation system that not only respects the principle of equality but also reflects the heterogeneity of the Member States represented.
Professor F.H.J.J. Andriessen
Chair of the Advisory Council on International Affairs
2500 EB Den Haag
19 July 2001
Dear Professor Andriessen,
The Declaration on the future of the Union annexed to the Final Act of the IGC (see Annexe IV to the Nice Treaty) calls for a deeper and wider debate on the future of the European Union. This debate was launched officially on 7 March 2001. Attached to the conclusions of the Swedish Presidency (Gothenburg 15-16 June 2001) is a report summarising the ini-tiatives taken since then. The Laeken European Council of 14-15 December 2001 will adopt a declaration on this debate on the European Union’s future, mapping out lines for its continuation.
The following problems must be addressed as part of this debate:
- How will it be possible to establish, and subsequently to monitor, a more precise delimi-tation of powers between the European Union and the member states, reflecting the principle of subsidiarity?
- What will be the status of the Charter of Fundamental Rights of the European Union, proclaimed at Nice in accordance with the conclusions of the Cologne European Council?
- How can the treaties be simplified to make them clearer and easier to understand, without changing their meaning?
- What is the role of national parliaments in the European architecture?
The Government requests the Advisory Council on International Affairs to prepare an advi-sory report on these matters, taking into account the memorandum that the State Secre-tary for Foreign Affairs and I sent to the House of the Representatives on 8 June 2001. That memorandum on the future of the European Union (Parliamentary Papers 2000-2001, 27 407, no. 9) is hereby enclosed for your information.
The question of which issues should ultimately be dealt with in any forum that may be set up will certainly be discussed at the Laeken European Council, and possibly beforehand at the informal European Council at Ghent on 19 October 2001. The Government can well imagine that the Advisory Council may not have time to deal with all the issues enumerated above in detail before then.
For the record, I should add that the Government is of course acquainted with the Advisory Council's earlier report, “A European Charter of Fundamental Rights?” (Advisory Report no 15, May 2000), so that there is no need for the Council to discuss the Charter’s status at length.
I hope that the Advisory Council will be able to issue its report, or at least part of it, in time for the Government to draw on it when determining its position for the European Councils mentioned above.
Jozias van Aartsen
Minister of Foreign Affairs
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