Commission sources have distributed a short paper that facilitates the analysis on the "Penelope" project, isolating innovative proposals contained in the some 150 pages of this "feasibility study" undertaken last year at the request of the European Commission (but that does not commit the College) as contribution to the drafting of the preliminary draft Constitution of the European Union. This working paper has been published in the form of a brochure, and can also be found on the Commission's site, where it has already been consulted by some 60,000 people. The paper has been forwarded to the European Convention where it is now among the reference papers in the debate on the Constitutional Treaty that has now really begun. (See EUROPE of 6 and 7 December 2002, for the reactions within the European Convention, as well as our "A Look Behind the News" section from 7 to 11 December 2002 and 16 January 2003). We here publish the list of the 26 proposals (in English and French) in our EUROPE/Documents series.
- - - - - - - - - - -
LIST OF 26 INNOVATIVE SUGGESTIONS UNDER "PENELOPE"
The preliminary draft Constitution is consistent with the Communication, but it is also more precise and introduces a few new points, since it is intended as a comprehensive exercise.
This preliminary draft does not deal only with principles. It also sets out a new formulation of the institutions and of EU policy areas. In particular, there are innovative provisions for the institutions.
For example (non-exhaustive, and in no particular order):
for the first time, in common with certain national constitutions, an authoritative list of the 25 Member States is introduced in the main text (Article 3 of the Constitution), and does not have to be deduced implicitly, for example, from the drafting of the articles concerning the membership of the European Parliament or the rights to vote in the Council;
a clear distinction is made between the executive function and the legislative function; Acts are regrouped and reclassified: Laws for legislative functions, Regulations for executive functions, etc. Laws replace - as legal acts deriving directly from primary law -regulations, directives and framework decisions;
the legislative/unction is explicitly entrusted to the General Affairs Council, composed of the Ministers for European Affairs, to participate in co-decision with the European Parliament instead of sending the associated Permanent Representatives. (Article 43 § 3 of the Constitution);
codecision procedures are simplified (Articles 58 - 61 of the additional Act n°4) for the adoption of laws. The revised procedure has been designed (cf. Article 77 of the Constitution) with increased efficiency in mind and includes the introduction of deadlines as from the first reading; if one of the two institutions - Council or Parliament - does not decide within the time assigned to it, while other approves the text without amendments, the law is adopted;
the decision-making process is simplified; the draft Constitution says "the law determines", instead of repeating formulas such as "on a proposal of the Commission, Council, according to the procedure (joint decision, cooperation) with Parliament, decides by (qualified majority or unanimity) to determine...". In principle, the Council decides by double majority (of states and of population) and the European Parliament by a simple majority;
the requirement for unanimity is abolished, with only one exception (the accession of a new state);
organisation is harmonised between the three institutions: in organising themselves, Parliament, the Council and the Commission must endeavour to align their divisions of labour and policy with each other's (Article 41 §1, 43 § 4, and 50 § 3 of the Constitution);
the College's work is rationalised: the President distributes responsibilities among Vice-Presidents, each of whom works in cooperation with a small group of commissioners (cf .the previous point);
the President of the Commission is appointed by the European Parliament by a strengthened (two-thirds) majority; this appointment is confirmed by a reinforced majority of the European Council (3/4 of the votes accounting for at least 2/3 of the population of the Union); the appointment cannot thus be the hostage of short-term political circumstance;
in addition to the general requirements for competence and guarantees of independence for membership of the Commission, a third criterion is introduced: European commitment, to avoid the appointment of a Eurosceptic Commissioner (Article 46 § 4 of the Constitution);
it is proposed to entrust to the Commission, in its traditional role of "guardian of the treaties" the function of taking infringements by the Member States to the Court of Justice, as envisaged by the ECSC Treaty. This innovation will make it possible to ensure more correct and timely application of the law of the Union (Article 45 d) of the Constitution);
the concept of intensity of action in introduced (Article 73; subparagraph 2, of the Constitution), inspired by the conclusions of the Edinburgh European Council;
new key concepts and instruments are introduced: the principles of transparency, good governance, decentralisation (Article 10 § 2 of the Constitution), the open coordination method (cf. definition of the recommendation, art. 83 § 2) or agencies (Article 71 of the Constitution);
budgetary procedures are modernised, with integration into the Constitution of the financial perspective as a general framework (Article 91 of the Constitution), the definition of the own resource concept (and the possibility of the European tax) (Article 92 of the Constitution) and a simplified budgetary procedure (Article 62 of the additional Actn°4). It should be noted that the discharge (or refusal to discharge) no longer falls within the competence of Parliament alone: the assent of the Council is also required (Article 70 of the additional Act n°4);
various procedures, more or less elaborate according to whether the part concerned is of a more or less essential character, are set out for constitutional revision; in addition, perpetuation of the system of the Convention (Article 101 of the Constitution);
the role of the European Parliament in the procedure for accession is clarified, compared to the current drafting of art. 49 of the Treaty on European Union: simple opinion at the time of the opening of the negotiations, assent on the Treaty of Accession. The latter is no longer concluded between the applicant country and the Member States, but with the Union (Article 102 of the Constitution);
a possibility of withdrawal from the Union is allowed for: this is not completely voluntary (Article 103 of the Constitution) but depends on a procedure which is set in motion when a Member State fails to adopt a revision of the Constitution;
an article devoted to law and order is included; this stipulates that when a Member State is required to take measures in the event of serious disorders affecting it, war or serious international tension constituting a war threat, or to deliver its international responsibilities for the maintenance of peace and of international security, the Council, by a strengthened qualified majority, on a proposal of the Commission, adopts the appropriate measures. These measures give priority to concerted action by Member States in a spirit of solidarity (Article 99 of the Constitution);
the territory of the Union is defined explicitly for the first time, in the article on territorial application (Article 100 of the Constitution);
provisions concerning the internal market and the freedoms of movement are radically simplified; for example, a single legal base for all legislation (Article Iii-11), which allows better legibility of this important element of the acquis;
in the provisions concerning competition, the current subparagraph 3 of Article 88 § 2 which enables the Council to allow state aids when the Commission decides to prohibit them, is removed;
as regards foreign policy, a provision is introduced to facilitate the representation of the Union, by the Secretary of the Union, in the Security Council of the United Nations (Article III-108 § 4);
all the provisions concerning external policies (economic and monetary policy, environment, etc.) are brought together in the part on external relations;
the Euratom Treaty is democratised; Parliament adopts, with the Council, "laws" for basic standards; at present it is largely excluded from the decision-making process;
there are new provisions for the Court of Justice, with a differentiation between the higher authority, the Court, renamed "supreme Court", and a first jurisdiction level, the Court of First Instance, together forming the "Court of Justice". In addition, the document proposes that the rules of procedure of the Court of Justice and of the Court of first instance, applicable to the persons subject to legal proceedings, be fixed by the Institutional law (as in the Member States) and no longer by the Court;
institutional reinforced cooperation is abolished, since the rule of unanimity for the policy implementation no longer exists; however, the possibility of establishing closer co-operation remains (Article 5 § 2 of the Constitution).