Brussels, 13/08/2002 (Agence Europe) - Professor Roland Bieber, Director of the Centre for Comparative Law and European Law of Lausanne University, has submitted to the European Convention a contribution on powers and institutions in the context of an EU Constitution. The paper builds upon reflections he first developed in 2001, under the auspices of the Bertelsmann Foundation for the Auswärtiges Amt. Professor Bieber suggests in particular the drafting of nine articles on the principles serving as the foundation for relations between the European level and the national level, based partly on existing texts but with the addition of new elements, inspired in some cases by Court of Justice case-law and in others by the new Swiss Constitution. For example: - the reference in the Treaty to the need for the European institutions and bodies to avoid taking any measures that could compromise Member States' functional capacity and "identity"; - the organisation of mediation in the event of a disagreement over powers between Member States or between Member States and the Union (see below); - the duty of "loyal cooperation" between Member States; - the possibility for Member States to assign to Union bodies coordination tasks in certain areas under their jurisdiction (which Mr Bieber says would create "a transparent basis" for the open coordination method launched at the Lisbon European Council); - the possibility of returning to the Member States certain powers now enjoyed by the Union.
Concerning possible conflicts between Member States and the Union over powers, Roland Bieber calls for the establishment of an interparliamentary committee, with half its members coming from the European Parliament and Council, and half from the national parliaments. The European Commission would participate in the committee's deliberations, with decisions being taken by simple majority. If the committee should fail to come to agreement within three months, the proposed legislation would be passed; otherwise, the Member States could bring the matter before the Court of Justice.
As for relations between the institutions, Roland Bieber notes that the European Council intervenes increasingly in the legislative process without being subject to the scrutiny mechanisms established by the Treaty, which ends up giving something of an "executive" nature to European law. He therefore considers that the European Council should either be developed along the lines of a European institution (and consequently be subject to such scrutiny), or concentrate on its role of giving momentum and defining general political guidelines, as stated in Article 4 of the EU Treaty. Moreover, according to Mr Bieber, all three institutions should have the right of initiative, but the European Commission, which defends the general interest, should enjoy some form of veto (while allowing Parliament and the Council acting together to override such a veto). Prof. Bieber adds that the president and two vice-presidents of the European Commission should be directly or indirectly elected by the European Parliament. And the Commission's principal responsibility should be "formulating and defending the general interest". As far as the Council is concerned, Mr Bieber notes that "personalising its members" would lead to "decisive structural improvement". Indeed, the "secret of success" of the European Council compared to ordinary Councils can be explained, inter alia, by this difference. Noting that it is not necessary for now to make provision for appointing "one member from each Member State government to the Council", he suggests "appointing one representative per State (to the Council) and foreseeing the possibility of appointing up to five deputies", which could - but does not necessarily have to - lead to the appointment of "Ministers for European Affairs".
Concerning the national Parliaments, Mr Bieber notes that a possible "House of Parliaments" would have the effect of weakening "the profile and identity of the European Parliament without strengthening the legitimacy or effectiveness of the decision-making system". In contrast, he accepts (see above) the involvement of the national parliaments in a mechanism for overseeing subsidiarity, and believes it possible to consider allowing national MPs to be part of Member State delegations to the Council of the European Union.
The authority of the Court of Justice and of the Court of First Instance must also be strengthened, observes Prof. Bieber, who suggests doing so through a reinforcement of the legitimacy of the procedure for electing their judges. This procedure should be based on the one used for the appointment of the judges of the European Court of Human Rights (presentation of several candidates, election by Parliament, and so on).