Mr Piris highlights problems in attempt to give firmer definition of responsibilities at the different levels within the EU

Brussels, 04/01/2001 (Agence Europe) - In his "Does the European Union have a constitution? Does it need one?" document, the EU Council lawyer Jean-Claude Piris, Director General of the Council's Legal Service, focusses on one of the criteria to be met in order to turn the "fundamental texts" into a Constitution which the European Summit of Nice decided to deal with 'after Nice', namely a clear division of competencies between the EU and its Member States. Mr Piris pointed out that in a judgement on 23 April 1986, the Court of Justice had already called the fundamental treaties of the European Communities a 'Constitutional Charter' and suggests in his document (which he has written in a personal capacity) a series of "improvements" to be made to this "Constitutional Charter" (see European Library of 13/14 November on Mr Piris' article on the same subject published in the "Quarterly Review of European Law"). Mr Piris feels that the other criteria necessary to turn the Treaties into a Constitution of a similar type to a country's constitution cannot yet be met given the current level of European integration (organising "EU governance", "full sovereignty of the EU" in terms of external relations and the direct adoption of an EU Constitution "by its peoples"), but points out all the same that a "superb example of an institution which has absolutely no pretensions to be a state" exists in international law, namely the International Labour Organisation (ILO) which was set up in 1919 with the adoption of a "constitution" which still holds force today.

As for the tighter definition of the competencies of the EU and its Member States which will form part of the 'after-Nice' debate on the future of the Europe project, Mr Piris believes that "one could try to find ways of improving the definition of the EC's competencies, particularly based on the Court of Justice's case law", but "it is not certain that it will be possible (or even desirable) to make radical changes to the current situation". Mr Piris notes a clear division of responsibilities has been requested by both the supporters and the opponents of integration, both of which groups comment at times that "the limits of the EC's competencies are ill-defined, permeable and unstable and any changes are always in the direction of increasing its competencies". "This statement is incorrect", comments Mr Piris, drawing attention to a series of judgements and opinions by the Court of Justice over the last decade which have gradually drawn up clearer rules for the division of competencies, but this phenomenon "has probably not yet been fully appreciated". He recognises, however, in a clear reference to Germany, that "one can understand the reaction of a regional body of a Member State which is reserved and guaranteed by the national constitution full competence for passing legislation in the fields of culture and education, for example, when the federal authorities of the Member State in question are forced to admit that they cannot prevent the EC from passing legislation, indirectly at least, in the very same areas". Mr Piris contends, however, that "this will not be as simple to carry out as it might appear at first glance". In particular, he notes that:

• Existing federal states such as the United States and Germany "show that such a division of competencies is rather vague, apart from external relations, even if it seems generally quite generous", and that the Supreme Courts of the two countries "are extremely prudent each time they have to interpret these measures". Mr Piris points out that in the EC Treaty, the rule that applies in this connection is Article 5 which stipulates that the Community must act within the limits of the competencies which it has been granted and the objectives which it has been assigned by the present Treaty and that Community law is also subject to the principle of subsidiarity as stipulated (since the Maastricht Treaty) in the same Article and developed (since the Amsterdam Treaty) in a separate protocol attached to the Treaty;
• Community law "is not stable, but dynamic". In a number of cases, for example, the Treaty "attributes competencies to the EC in theory which have not (yet) been exercised, whether in the field of services, taxation, or transport etc.". As long as these competencies are not exercised, Member States "will be free to act", whereas as soon as they are exercised, they will "lose the relevant competencies". This makes it rather difficult to draw up a "strict, detailed and stable" division of competencies that works "in both directions", feels Mr Piris, who wonders, "Can one really contend, for example, that Member States have lost their freedom of action in the field of trade or agricultural policy? This is not true, even if these two policy areas are considered as the best and most significant examples of "the EU's exclusive competencies"".
• A further difficulty is that the "EU would risk getting caught up in the tricky issue of the relationship between its Member States and their regional bodies" which are determined by the constitution of the Member State involved. A detailed division of competencies at European level might therefore "oblige each Member State to amend its constitution and domestic policies", comments Mr Piris.