On 16 May, the European Parliament adopted during its Strasbourg session two resolutions on reform of the European institutions. The resolutions are a contribution to two exercises that should be well differentiated: - the next revision of the Treaty on which the European Convention chaired by Valéry Giscard d'Estaing is already working (the Lamassoure resolution on power sharing within the EU: see debate in EUROPE of 17 May, pages 4 and 5); - and improvements in the Council's work that may be introduced without having to revise the Treaty (for the debate on the Solana report and follow-up to the report, see EUROPE of 17 May, pages 6 and 7). The full text of both resolutions is published in EUROPE/Documents.
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DIVISION OF COMPETENCES BETWEEN THE EU AND THE MEMBER STATES
The European Parliament,
having regard to the treaty signed in Nice on 26 February 2001, and in particular Declaration 23 on the future of the Union,
having regard to the Laeken European Council's declaration of 15 December 2001 on the future of the European Union,
having regard to the territorial organisation of the Member States set out in their respective constitutions,
having regard to its resolution of 12 July 1990 on the principle of subsidiarity,
having regard to its resolution of 13 April 2000 containing its proposals for the Intergovernmental Conference,
having regard to its resolution of 31 May 2001 on the Treaty of Nice and future of the European Union,
having regard to its resolution of 29 November 2001 on the constitutional process and future of the Union,
having regard to the opinion of the Committee of the Regions of 13 March 2002 on the draft European Parliament report on the division of competences between the European Union and the Member States,
having regard to Rule 163 of its Rules of Procedure,
having regard to the report of the Committee on Constitutional Affairs and the opinions of the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy, the Committee on Economic and Monetary Affairs, the Committee on Legal Affairs and the Internal Market and the Committee on Regional Policy, Transport and Tourism,
whereas the current system of division of competences in the Treaties is characterised by a complex interweaving ('Politikverflechtung') of objectives, substantive competences and functional competences, arising from the existence of four treaties and two different entities, the Union and the Community, from the proliferation of legislative instruments with differing and sometimes questionable legal scope, and from the absence of a real hierarchy of acts,
whereas this situation is the outcome of half a century of existence during which the institutions created for a small Community with essentially economic objectives have had to adapt to successive enlargements and to the increasingly political functions assigned to the Union,
whereas the principles of subsidiarity and proportionality introduced by the Treaty of Maastricht and specified by the Treaty of Amsterdam have not yet managed to clarify, in each specific case, the respective roles of the Union and the Member States,
whereas public opinion polls and the debates held since the Treaty of Nice both reveal a gulf between citizens' expectations of Europe and the issues actually dealt with by the latter,
whereas the Member States must have competence under the ordinary law, and whereas the Union must enjoy only the competences allocated to it, as defined by the Constitution pursuant to the principles of subsidiarity and proportionality, taking into account the wish for solidarity amongst the Member States and an analysis of costs in relation to the benefits enjoyed by the general public,
whereas in most Member States or federal bodies the range of competences exercised solely at either Community or Member State level is tending to diminish and to be replaced by a growing range of shared competences exercised in a manner consistent with the principles of subsidiarity and proportionality,
whereas Community intervention is legitimate only if it meets at least one of the three following criteria:
the relevant scope of the proposed measure goes beyond the limits of a Member State and the measure might give rise to perverse effects (distortion or imbalances) for one or more Member State should it not be implemented at Community level (criterion of relevant scope),
the measure planned at Community level would generate, by comparison with similar measures implemented separately by individual Member States, substantial synergies in terms of effectiveness and economies of scale (criterion of synergy),
the proposed measure meets a requirement for solidarity or cohesion which, in the light of disparities in development, cannot be met satisfactorily by the Member States acting alone (criterion of solidarity),
whereas at the moment the nature of the procedures, whether intergovernmental or Community, and the decision-making arrangements, whether requiring unanimity or a qualified majority, determine in de facto terms the division of competences between the Union and the Member States, and whereas the paralysis caused by intergovernmental procedures and unanimous decision-making has resulted in competences theoretically conferred on the Union by the Treaties being retained, for no good reason, by the Member States,
whereas the provisions laid down in the Treaties concerning role-sharing between the Union and the States, which have been in force for 30 years, have hardly allowed the Union, in the foreign policy sphere, to act as an independent player on the international stage, as is demonstrated by the poignant example of the crisis in the Middle East,
whereas, in all cases of shared competences, the intensity of EU action is determined not only by the Treaty provisions but by the Member States themselves through their involvement, via the Council, in the Union's decision-making procedures,
whereas it has only been possible to remedy the rigid framework for functional competences established by the existing treaties by using Article 308 of the EC Treaty, to such an extent that it has served as the legal basis for more than 700 Community legislative measures, even though they have considerably decreased in number in recent years,
whereas the institutional guarantees of compliance with the division of competences are inadequate,
whereas the system of competences must be capable of evolving and adapting to social, economic and political changes that might take place in the future,
whereas, in any event, the Union constitutes a unique, innovative institutional area,
having regard to the way in which the internal organisation of the Member States differs in terms of territorial division and the conferral of competences,
whereas in recent decades a number of Member states have successfully carried out decentralising reforms to increase grassroots involvement in policy-making and enable the regions to engage in productive competition,
whereas territorial units with legislative competences now exist in almost half the Member States, where the transposition of Community legislation into domestic law is in some cases a matter for decentralised authorities; whereas the management of Community programmes is, at all events, just as much a matter for the regions and municipalities as for central government, and consequently the basic Union texts can no longer disregard the role of these particular partners, which must help both to make Community policies more effective and bring citizens closer to the process of European integration,
whereas, at all events, it is for the Member States to promote, within the framework of their constitutional system, suitable participation for the regions in decision-making processes and representation in the field of European affairs in each country, without forgetting the necessary role to be played by municipalities in this connection,
whereas the Laeken Declaration has instructed the Convention to deal with the questions of competence and subsidiarity as a matter of major importance,
Competences of the Union in a constitutional framework
Considers the time has come to update the division of competences between the Union and its Member States on the basis of the principles of subsidiarity and proportionality, in order to take account of the lessons of the Community's history, the views of the candidate countries and the expectations of citizens;
Hopes that a better division of competences will result in a clear assignment of political responsibility and thereby a strengthening of democracy in Europe;
Reiterates its call for a constitution for the Union addressed to all its citizens, which recasts the various treaties and merges them into a single text concerning a single entity, the Union, endowed with single, full legal personality;
Considers that this constitutional approach must be accompanied by a new presentation of the competences of the Union and that this presentation must be sufficiently clear to be understandable to all citizens;
Considers that there is a continuing democratic deficit in the European Union and that the current process of reform, focussing on the competences of the EU institutions, must achieve substantial democratisation of the institutions;
Reiterates its call in this context for the second and third pillars to be brought within the Community sphere in order to consolidate democratic legitimacy and ensure parliamentary and judicial scrutiny;
Considers that the purpose of this exercise should be to achieve a balance between the economic integration of the Union already in place and its social and political integration;
Considers that the Preamble to the Treaty must be supplemented by references to the European Social Model and to Europe's role in a world of peace, stability and international justice;
Considers that a clear distinction must be made between the general objectives of the Union and its competences, defined by subject area; wishes to see a simple and precise distribution of competences, in which each heading merely states the subjects in question, the specific objectives pursued by means of Union action in the subject area concerned and the means employed by the Union to that end;
Considers that, among the provisions in the current Treaties relating to arrangements for the exercise of certain competences that were attributed to the Union, details which are not fundamental should be moved to a second section and should be amendable by a simplified procedure;
Exercise of competences
Considers it essential
pursuant to the principles of separation, equilibrium and cooperation between the powers, that the future European constitution should better define independent legislative, executive and judicial functions;
that compliance with the principle of subsidiarity should be laid down as a constitutional requirement;
that an effective hierarchy of acts should be implemented;
Considers that legislation - Community 'law' - must be adopted on the sole initiative of the Commission by the two branches of the legislative authority, the Council and Parliament, which are responsible for political choices, whereas implementing measures, established by the law, come under the executive power which, depending on the circumstances, may be the responsibility of the Commission, a specialist European Agency, the Member States or, in line with the constitutional system of the various states, their territorial authorities; the exercise of executive power at European level must be subject to control by the European Parliament;
Considers that the terminology of the Treaty should be altered to make a clearer distinction between acts of the executive and those of the legislative authority;
Considers it essential to enshrine the list of legal acts and other forms of action open to the Union in a new version of Article 249 EC and in an exclusive list in a separate article of the Treaty;
Is aware, however, that the introduction of a clearer hierarchy of norms will not eliminate possible conflicts in future legislative proposals when identifying which regulatory elements are to belong to the legislative level and which elements are to belong to the executive level; it must therefore be unequivocally clear that the distinction between these two regulatory layers will continue to be defined by the Council and the European Parliament, acting on a proposal from the Commission under the co-decision procedure;
Reiterates its earlier statements that, in this context, the revision of Article 202 of the Treaty is essential and calls on the Convention to recommend the introduction of the co-decision procedure for this Article for the purpose of defining which new procedures for the use of implementing powers at executive level will apply;
Notes that with respect to the delegation of executive powers for implementing rules to European agencies, effective and direct parliamentary monitoring and control must be guaranteed; believes that a general and harmonised framework for such monitoring and control will need to be defined in agreement with Parliament at the latest with the entry into force of the new Treaty;
Points out that the political model of the Union is currently based on two fundamental features: the Union has only small management departments, at least for internal policies, for which it relies on the Member States (subject to the Commission monitoring the obligation of Member States to apply the policies adopted); considers that the bulk of fiscal and tax power must also remain at national level;
General framework of competences
Proposes that a distinction should be drawn between three types of competence: the competences exercised as a matter of principle by the States, the Union's own competences and shared competences; is aware that certain actions may purely and simply be banned ('negative competences');
Considers, that, within its field of competence, the Union must have flexibility in the ways in which it acts, according to the degree of need for Community intervention; law, recommendation, financial aid, etc.;
Competences exercised as a matter of principle by the State
Does not consider it necessary to draw up a list of the exclusive competences of the Member States, but rather to apply the principle of presumption that the States have jurisdiction where the constitutional text does not stipulate otherwise;
The Union's own competences
Considers that, in the areas covered by the Union's own competences, the Member States may intervene only in accordance with the conditions and within the limits established by the Union;
Considers that the Union's own competences must continue to be few in number and relate, as is now the case, to customs policy, external economic relations, the internal market (including the 'four freedoms' and financial services), competition policy, structural and cohesion policies, association agreements and, where the euro area is concerned, monetary policy;
Wishes, however, to add to the above lists the drawing up and the running of the common foreign and defence policy, the legal basis of the common area of freedom and security and the funding of the Union budget;
Shared competences
Considers that shared competences cover three types of area: those in which the Union lays down general rules, those in which it intervenes only in a complementary or a supplementary fashion, and those in which it coordinates national policies;
Considers that where competences are shared the Union must lay down general rules on subjects falling into two categories:
those which constitute policies complementing or flanking the single area: consumer protection, agriculture, fisheries, transport, trans-European networks, the environment, research and technological development, energy, social and employment policy, immigration policy and other policies linked to the free movement of persons, the promotion of equality between men and women, the association of overseas countries and territories, development cooperation and taxation relating to the single market;
those relating to the implementation of foreign policy and of internal and external defence and security policy, as regards the transnational dimension thereof;
Considers that, in this area of competences, Community legislation is justified where European interests are at stake; in such cases, Community legislation must establish the guidelines, general principles and objectives including, where necessary, common rules and minimum standards; considers that Community legislation should aim to create uniformity only where there is a clear threat to equal rights or competition;
Considers also that, in the above areas, the Member States must retain the capacity to legislate where the Union has not yet exercised its prerogatives;
Considers that, in other areas, it must be made clear that action by the Union may only complement that of the Member States, which retain the competence to enact ordinary law; this already applies to education, training, youth, civil defence, culture, the media, sport, health, industry and tourism, to which civil and commercial contracts should be added;
Considers that the Union also has powers (and sometimes legal obligations) to coordinate policies which are essentially the responsibility of the Member States; these include the obligatory coordination of budget and fiscal policies in connection with economic and monetary union and of employment policies with a view to facilitating the achievement of the Union's objectives;
Recommends that, in order to make such coordination more effective, new procedures distinct from the Union's common-law procedures and involving all the Community institutions should be implemented;
Considers that the principles of subsidiarity and proportionality must be strengthened; to that end proposes that a Commissioner be given responsibility for monitoring the application of the subsidiarity principle in respect of all texts proposed by the Commission; confirms the recommendations that were made in its resolution of 7 February 2002 1 on the relation between the European Parliament and national parliaments;
Points out that 'open coordination' of national policies leads to further blurring of political responsibilities; insists that such a procedure be accompanied by proper parliamentary supervision;
Takes the view that the exercise by the Union of its competences, whether exclusive, shared, additional or coordinating competences, must no longer be thwarted by paralysing (no power of initiative, unanimous decision-making, ratification by the Member States) or non-democratic (lack of genuine parliamentary participation or judicial review) procedures, although it acknowledges that certain categories of competences, in particular coordinating competences and competences in the sphere of own resources, must be exercised on the basis of specific procedures closely involving the national parliaments or their representatives;
Future development of the system
Considers it essential to include a review clause in order to avoid establishing a rigid system for the division of competences; in this connection, considers that it would be useful to maintain a mechanism similar to the current Article 308 of the EC Treaty which could be applied only in exceptional circumstances and which works in both directions by enabling competences to be returned to the Member States when the need for Community intervention had ceased; hopes that the European Parliament will be involved in decision-making;
Proposes assuring the people of the EU that transfers of competences will take place with total budget transparency under the watchful eye of the Court of Auditors, so as to ensure that, on such occasions, there is no duplication of bureaucratic effort at EU level and at Member State level;
Suggests that the framework of competences should be comprehensively reviewed ten years after its adoption;
The role of territorial authorities
Considers internal territorial organisation and the division of competences within each Member State to be matters to be decided upon by the Member States alone; at the same time, notes the increasing role which the regions (and sometimes other territorial authorities) are now playing in the implementation of Union policies, particularly where regions with legislative competences exist;
Hopes, therefore, that the Union will be open to proposals from the Member States which are designed to ensure that their respective territorial authorities are more closely involved in drawing up and, where appropriate, transposing EU rules, provided that the individual Member States' constitutions are not infringed; instructs its committee responsible for constitutional affairs to draw up a special report on this matter, taking into account the opinion expressed by the Committee of the Regions;
Will include in its Rules of Procedure the necessary provisions to enable representatives of regional parliaments with legislative capacity to take part regularly in the work of the committee responsible for regional affairs, in line with the practice already tried out with good results;
Judicial guarantees
Considers that the Court of Justice is, in many respects, the Union's Constitutional Court;
Proposes that a chamber should therefore be set up within the Court of Justice to hear cases concerning the Constitution, competence and fundamental rights;
Proposes the creation of an additional referral procedure prior to the entry into force of a legislative measure and capable of suspending the application thereof; that referral procedure would work as follows:
it could be initiated by the Commission or by a significant minority in the Council or Parliament;
the procedure would have to be initiated within a period of one month from adoption of the legislative measure, the Court also having to give a decision within one month;
the sole grounds admissible in this urgency procedure would be a conflict of competences relating to non-compliance with the principles of subsidiarity and proportionality;
Instructs its President to forward this resolution to the Council, the Commission and the Committee of the Regions, and the Convention on the Future of Europe.
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COUNCIL REFORM AND TRANSPARENCY
The European Parliament,
having regard to its resolution of 25 October 2001 on the reform of the Council, in particular paragraphs 6, 7, 23 and 25 thereof,
having regard to the report of 11 March 2002, 'Preparing the Council for enlargement', to be submitted by the Secretary-General of the Council to the European Council in Seville,
having regard to its resolution of 14 March 2002 on the implementation of European Parliament and Council Regulation (EC) No 1049/2001 on public access to European Parliament, Council and Commission documents,3 in particular paragraph 20 thereof,
having regard to the Presidency Conclusions of the Barcelona European Council of 15 and 16 March 2002, in particular Part II, paragraph 51, thereof,
whereas the main aim of the reform of the Council must be to adapt the Council's practical structure and procedures to the increasing number of its members and the requirements of coherence and transparency which the legislative function entails in a Community based on the rule of law, and whereas there must therefore be a distinction between the legislative Council, meeting publicly, and the executive Council,
welcoming the Council's willingness to demonstrate, together with Parliament, the commitment to transparency and openness accepted by the Council's Presidency in a letter to the President of Parliament dated 11 February 2002,
whereas Parliament has already requested that when the Council acts as legislator both the deliberations and the votes should be public,
whereas Parliament has invited the European Council in Barcelona to adopt the initiatives set out by Prime Minister Blair and Chancellor Schroeder in their joint letter to Prime Minister Aznar directed towards holding Council meetings in public when the Council is acting in its role as legislator,
whereas the Barcelona conclusions aimed at slimming down the agenda of the European Council and recentring it on its essential functions represent a first step in the direction called for by the European Parliament,
noting that the Convention on the Future of Europe is considering fundamental reforms that would affect the style, structure and output of the Council, as well as its relationships with the other institutions,
whereas the Secretary-General's report on 'Preparing the Council for Enlargement' suggests a series of reforms able to be put into effect without amending the Treaty, on which the General Affairs Council still has to deliver an opinion,
whereas this report nevertheless gives very few details of the practical measures needed to reform the Council's functioning,
pointing out that the current proposals do not cover cooperation with Parliament as co-legislator, and reiterating therefore the proposals made in its abovementioned resolution of 25 October 2001 on the presence of the Council at plenary sittings and at parliamentary committee meetings,
Repeats that the projected reform must give precedence to the Community method over the intergovernmental method in decision-making procedures in all the Union's spheres of activity; stresses in this connection that the reform of the Council must be consistent with the more general objective of rebalancing the powers of the Union's institutions with the aim of conferring legislative power on the Council and Parliament and executive power on the Commission;
Notes that re-establishing the European Council's role of laying down political guidelines is an initial step in the direction called for by Parliament;
Stresses nonetheless that upgrading the role of the General Affairs Council and reestablishing a single procedure for the preparation of decisions are essential corollaries to this reform;
Regrets that the European Council in Barcelona fell short of giving clear guidelines with a view to making the Council work transparently when it acts as legislator;
Recalls that the European Parliament considers it essential, in the context of the legislative process, that the Council should open its meetings to the public, also permitting the presence of television cameras to film the debates and the voting;
Notes that the European Council does not, by simply mandating the Presidency of the Council with another report, fulfil its task of providing the Union with the necessary impetus for its development as stipulated in Article 4 of the EU Treaty;
Takes the view that the Council's procedures must as a matter of urgency be adapted to the increasing number of its members, so that it becomes an effective institution capable of acting in an enlarged Union;
Considers it essential that the President-in-Office of the Council should continue to report to Parliament three times during the Council presidency: at the beginning of the presidency, to present his programme; once during the presidency, to report on progress achieved; and at the end of the presidency, to give a concluding assessment;
Considers it essential, in the context of the legislative procedure, on the one hand that the Council be present when legislative texts are adopted in Parliament and, on the other, that Parliament also be present when the Council takes final legislative decisions; in the case of decisions taken in accordance with the codecision procedure, the representatives of Parliament should be entitled to speak at the Council meeting; as equal legislative authorities, Parliament and the Council together should publicly announce the final outcome of a legislative procedure;
Reiterates that, in the context of the legislative procedure, the Council should be represented in the Conciliation Committee by representatives with a political mandate, who can take decisions of their own in the negotiations, in order to ensure efficient negotiation; these would be the relevant ministers and the President-in-Office of the Council, who in any event must be present throughout the conciliation procedure;
Asks the Secretary-General of the Council to engage in talks with Parliament's competent committee in order thoroughly to discuss its decisions, and to inform Parliament subsequently before submitting its report to the European Council in Seville;
Urges the Council to present this report in due time, taking full account of all suggestions made by Parliament and by the Council's Secretary-General in his report as a valuable first step towards ensuring greater transparency in the legislative process;
Insists that the Council submit for the consideration of the Convention any proposals for the reform of the European Council or the Council that may require treaty reform;
Recalls that Article 12(2) of Regulation (EC) No 1049/2001 defines legislative documents as documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States;
Urges the Council to find common guidelines in the framework of the inter-institutional committee on transparency established under Article 15 of Regulation (EC) No 1049/2001, where all procedures and forms of the future development of public access should be discussed;
Points out that the scope of Regulation (EC) No 1049/2001 covers all legislation including that under the second and third pillars, regardless of the decision-making procedure, and that the public should therefore have access to Member States' positions on legislative proposals;
Requests the Council not to follow the opinion of its legal service in its interpretation of Article 49 of the EU Treaty, Regulation (EC) No 1049/2001 and the Framework Agreement of July 2000 between the European Parliament and the Commission, which would deny the European Parliament access to common positions relating to external relations, e.g. in accession negotiations;
Asks the Council and the Member States to join Parliament in an information campaign with a view to informing citizens of their fundamental right of public access to documents at European level;
Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the Member States and of the candidate countries.