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Commission of the European Communities

european perspectives

AN EVER

CLOSER UNION

A critical analysis

of the Draft Treaty establishing the European Union

Roland BIEBER

Jean-Paul JACQUÉ

Joseph H.H.WEILER

Preface by

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Andrea Pisano: La legislatura. (Florence, Museo Opera del Duomo) © Scala/Firenze

List of Contributors

Ernst M.H. Hirsch Ballin Luciano Bardi Roland Bieber Peter Brückner Vlad Constantinesco Jan De Meyer David Edward Dimitrios Evrigenis Giorgio Gaja Jacques Genton Jean-Marc Hoscheit Jean-Paul Jacqué Thijmen Koopmans Per Lachmann Robert Lane Carl Otto Lenz Richard McAllister James Modrall J. Ørstrom Møller Gianfranco Pasquino John Pinder

John Temple Lang Cécile J.M. Verkleij Joseph H.H. Weiler

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european perspectives

Commission of the European Communities

Roland BIEBER Jean-Paul JACQUÉ Joseph H.H. WEILER

AN EVER CLOSER UNION

A critical analysis

of the Draft Treaty establishing the European Union

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COMMISSION OF THE EUROPEAN COMMUNITIES

ïm

Published in cooperation with the

EUROPEAN POLICY UNIT,

EUROPEAN UNIVERSITY INSTITUTE, FLORENCE

An ever closer

Union

A critical analysis of the

Draft Treaty establishing

the European Union

Roland BIEBER Jean-Paul JACQUÉ Joseph H. H. WEILER

Preface by Altiero SPINELLI

THE EUROPEAN PERSPECTIVES SERIES BRUSSELS

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This publication was prepared outside the Commission of the European Communities and is inten-ded as a contribution to public debate on the subject of the Draft Treaty establishing the European Union. It does not necessarily reflect the opinion of the Commission.

This publication is also available in: DE ISBN 92-825-5219-5

FR ISBN 92-825-5221-7 IT ISBN 92-825-5222-5

Cataloguing data appear at the end of this publication.

The editors wish to express their thanks to Mr James Modrall for his valuable editorial assistance.

Luxembourg: Office for Official Publications of the European Communities, 1985 ISBN 92-825-5220-9

Catalogue number: CB-43-85-345-EN-C

© ECSC-EEC-EAEC, Brussels · Luxembourg, 1985

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Preface

Thanks to the European Community, our generation has seen the enduring dream of a free, united Europe beginning to come true. But the very success of the venture is presenting afresh challenge to the democratic people of Europe.

Membership of the Community has doubled over the years. And the political, economic, cultural and security problems to be tackled jointly, if Europe is not to be relegated to a minor role on the international scene, have grown in number and complexity.

Its institutions are intrinsically inadequate. They were improvised rather than planned at the outset and have deteriorated in two respects in the interval. Firstly, they have become less democratic, power being concentrated in the hands of a few ministers and senior civil servants accountable to no one. Secondly, this arrogant oligarchy — epitomized by the protean Council — has become more impotent with the years, because six, then nine, later ten and now twelve distinct national systems are incapable of devising the long-term, forward-looking policies that Europe needs, or of providing the continuity needed for coherent development.

The first directly-elected European Parliament saw the inherent danger of the shortcomings of the institutions. Drawing on the political authority given it by the people of Europe — the ultimate source of legitimacy in our democracies — it took it upon itself to draft a Treaty — Constitution of a genuine European Union and presented it f or ratification by the Member States of the Community. The European Parliament is not composed of impractical theorists and revolutionaries. On the contrary, all the political views of the European electorate are represented in its ranks. At the end of three years of meetings and committed endeavour, the European Parliament has demonstrated that it is capable of identifying, clearly and coherently, what Europe most needs today.

The vote taken by the European Parliament on 14 February 1984 marked the beginning of a new, decisive chapter in the history of European integration. Europe's future will depend in no small mea-sure on the fate of its proposal.

As one who assisted at the birth of the European Parliament's brainchild, 1 would like to take this opportunity of expressing my appreciation of the constant help and guidance provided by the European University Institute in Florence, thanks to the cooperation of its President, Werner Maihofer.

1 welcome in particular that the Draft Treaty on the European Union is examined here in an acade-mic perspective, which demonstrates the valid contribution of the European University Institute and its Policy Unit to the discussion on the future of the European integration.

Altiero Spinelli Rome, May 1985

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Contents

Introduction

by Roland Bieber, Jean-Paul Jacqué and Joseph H. H. Weiler

PART ONE - THE SUBSTANCE OF THE DRAFT TREATY

Chapter I — The Draft Treaty, an overview

by Jean-Paul Jacqué 17

Chapter II — The institutions and the decision-making procedure in the Draft Treaty establishing the European Union

by Roland Bieber 31

Chapter III — Division of fields of competence between the Union and the Member States in the Draft Treaty establishing the European Union

byVladConstantinesco 41

Chapter IV — The judicial system envisaged in the Draft Treaty

by Thijmen Koopmans 57

Chapter V — Financing European integration: the European Communities and the proposed European Union

by J. Ørstrom Møller 73

Chapter VI — Economic and social powers of the European Union and the Member States: subordinate or coordinate relationship?

by John Pinder 103

Chapter VII — Foreign affairs powers and policy in the Draft Treaty establishing the European Union

by Peter Brückner 127

Chapter VIII — The institutionalization process under the Draft Treaty

by Luciano Bardi and Gianfranco Pasquino 141

PART TWO - IMPLEMENTING THE DRAFT TREATY IN THE MEMBER STATES: CONSTITUTIONAL AND POLITICAL ASPECTS

Chapter I — The creation of the European Union and its relation to the EEC Treaties

by Joseph H.H. Weilerand James Modrall 161

Chapter II — Belgium and the Draft Treaty establishing the European Union

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Chapter III — The European Parliament's Draft Treaty establishing a European Union — constitutional and political implications in Denmark

by Per Lachmann 193

Chapter IV — The Draft Treaty establishing the European Union: report on the Federal Republic of Germany

by Carl Otto Lenz 209

Chapter V — Ratification and implementation of the Draft Treaty establishing the European Union: constitutional and political implications for France

by Jacques Genton 217

Chapter VI — Greece and the Draft Treaty establishing the European Union

by Dimitrios Evrigenis 237

Chapter VII — The Draft Treaty establishing the European Union and the Member States: Ireland

by John Temple-Lang 241

Chapter VIII — The Draft Treaty establishing the European Union from an Italian viewpoint

by Giorgio Gaja 261

Chapter IX — The Grand Duchy of Luxembourg and the Draft Treaty establishing the European Union

by Jean-Marc Hoscheit 265

Chapter X — The Netherlands and the Draft Treaty establishing the European Union

by Ernst M. H. Hirsch Ballin and Cécile J. M. Verkleij 275

Chapter XI — The Draft Treaty establishing the European Union — report on the United Kingdom

by David Edward, Richard McAllister and Robert Lane 285

ANNEX I —Draft Treaty establishing the European Union 306 ANNEX II — Ad hoc Committee for Institutional Affairs -Report to the European Council 330

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Introduction

Roland Bieber, Jean­Paul Jacqué, Joseph H. H. Weiler

I. Foundations

'Determined to lay the foundations

of an ever closer union

among the peoples of Euro ρ e

A

The term European Union is delightfully ambiguous; It has been used as the ideological underpinn­ ing and justification for almost all proposals designed to forward the process of European integra­ tion. The most disparate visions and strategies — the Draft Act for European Union (the Genscher­ Colombo proposal) on the one hand and the Draft Treaty itself on the other, to give but two recent examples — make reference to European Union. Empirically, one might as well abandon any hope of arriving at a common meaning of the term.

And yet, in the notion of Union we could be tempted to see an underlying ideal­type of European integration, a distant aspiration: a Europe which will bring about the elimination of the individual Member States as the basic units of political power and sovereignty— a Federa[State, a United States of Europe. The reference to the 'Peoples' of Europe, rather than the nation States is evocative of such an ideal­type and there can be no denying that this aspiration had at least the role of a mobilizing for­ ce in certain quarters at the beginning of the post­war process of integration.

This temptation, especially at the rime of institutional ferment and discussions of reform, must be rejected. Not simply, or even primarily, because of the current political unpopularity of such an ideal­type: after all to the extent that ideology and grand vision have an effect on the political pro­ cess, reality always falls short of ideal types giving more reason to spell out the vision in letters some­ what larger than life.

There is a more profound reason for such a rejection. The notion of an ideal­type United States of Europe, of a European Federal State represents in a most real sense a betrayal of both the deeper aspirations of European integration and of Europe's unique contribution to current political life. To be sure, in the lore of modern European integration the raison d'être for setting the process in motion was largely to negate the ravages brought about by the excesses of the modern and relatively new nation State and its ideology. (We know, of course, that the state actors negotiating the first European structures were hardly 'tainted' by such lofty aspirations and were concerned, then as now, simply to protect the interests of their nations). And yet, that very raison d'être compels the rejection today of a European 'superstate'. What achievement will it be, what progress will we have made, if

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we arrive at a point which paradoxically reinforces the very political structure towards which the European process was attempting to create a distance?

We arrive at the same conclusion when considering the significance of the last three decades and more of European integration. If the classical expressions of sovereignty are in the control of money, diplomacy, police and defence, it is clear that in the modern federation, federalism as an expression of shared rule and participation, has become a myth rather than a reality. And historically, all confed-erations have either disintegrated or evolved into full Federal States. By contrast, with all the known weaknesses and difficulties, Europe stands out as a unique experience in shared rule. It is a polity in which the individual nation State has not only retained its vigour, but has actually been sustained by the wider structure, but in which, at the same time, one has seen the attainment of a remarkable meas-ure of substantive integration traditionally associated only with 'higher' forms of Federal States. In Europe, sovereignty has become, in some real sense, truly shared. What the European experience has contributed to international political reality is a demonstration of the ability to reaffirm the conti-nued existence of the nation State albeit transferred by this very fact of shared rule within wider poli-tical integrative structure.

These notions find their most succinct and purest verbal expression in the idea of An ever closer

Union. The term 'union', utilized in this evolutive manner, clearly covers a multitude of structures

and modalities changing over time and cannot thus as suggested above, partake of a single authentic meaning. Moreover, once we direct our mind to the dualism of 'ever closer' two other basic notions come to the fore.

First, if a process is to go on for 'ever' there is an implicit affirmation of a 'never': the Union is never to be consummate, final, achieved. This is not a simple semantic exegetic interpretation. It is a reflec-tion of a basic burden and virtue of the European construct which is, as suggested above, rooted in a balance — not a substitution — between nation State and supranational structure: this balance is, and will remain, inherently difficult and often unstable. But that is the price for a polity the virtue of which is its truly innovative character and its ability not to fall into the classical patterns of interna-tional organization or statehood.

Secondly, the 'ever closer' union phraseology suggests a strong dynamic element. A process on the move. We may compare the European polity to a bicycle: essentially unstable except when in motion. The maintenance of momentum becomes thus a major concern for the European policy maker. This characterization of Europe is clearly Sisyphean. The union will for ever remain a target for which one must toil. But as with many great ideals the search is as important as the ultimate goal. It is in this context that we must evaluate recent initiatives at reinforcing the European construct. To posit as a virtue the delicate equilibrium between Community and Member State is not to suggest that the current structures and processes strike a right balance. By common accord the European Community of today is deeply flawed in its ability to tackle the major issues on the European agenda. Decisional processes are notoriously heavy, democratic legitimacy is increasingly problema-tic, competences are insufficiently bold. The danger is not crisis, but stagnation, loss of momentum, irrelevance.

Proposals for Community reform come thus, to the outside observer, under a double test: The extent to which they offer a new balance between Community (or Union) and Member States which may better address the major social, political and economic challenges, and the extent to which they are able to insert new momentum into the European process.

The Draft Treaty establishing the European Union is the most ambitious effort so far to achieve sweeping institutional and substantive reform in the European Communities, and the clearest proof of the new independence of the directly elected European Parliament. Apart from its immediate poli-tical significance, it has re-opened the debate on institutional and substantive reform of the European Communities at both the governmental and the public levels.

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The contributions in this book offer a comprehensive political, economic, and legal analysis of the Draft Treaty, and a realistic assessment of the political and constitutional hurdles it faces in the Member States. As editors, our intention was not limited to an analysis only of the Draft Treaty itself. The studies in this volume examine the state of the current Communities in many of their aspects, and the observations and recommendations made by the authors may be of help to all those engaged in the ongoing discussion on the fate of the European Communities.

We have organized the studies in two parts. In the first part, after an introductory chapter giving an overview of the Draft Treaty we have a series of contributions which examine the institutional, con-stitutional and substantive proposals in terms of their likely ability to answer the shortcomings of the present stage of the current European Communities. Naturally, evaluations will be affected by the subjective assessment of each contributor. Our pluralistic choice of contributors coming from diffe-rent Member States, from academia and from the professions, from national administrations and the Community organs ensure that a variety of perspectives get covered. In the second part of the book, we present 10 national reports which examine the constitutional and political context vis-a-vis the Draft Treaty in the Member States.

The first part will help us thus in analysing the substantive issues whereas the second part will pro-vide elements for assessing the receptibility of reform within the Member States.

No one, lease of all the authors themselves, believe that the Draft Treaty establishing the European Union in its current form will ever become the new 'constitution' for Europe. And although it would be patently wrong to regard the Draft Treaty as an extreme document (despite its weaknesses it has an appealing internal balance and a surprising modesty in its reformism) few can deny that its promotion has played a major role in shifting the centre of the debate.

The establishment of the Ad Hoc Committee on Institutional Questions (Dooge Committee) by the European Council and its report can be in large measure attributed to the momentum established by the Draft Treaty.

The Dooge report represents a paradoxical relationship to the Draft Treaty: in substance it is pro-geny; politically it is a counterveiling move.

The outcome of the current efforts at institutional reform will be determined by an interplay between the political forces and substantive content contained in the two documents. It becomes thus of great interest to compare the two with a view of verifying convergence and divergence.

II - Strategies

What is the state of play on the various proposals for institutional reform? Following the 1984 elec-tions, Parliament, through its Committee on Institutional Affairs, undertook to monitor work being done by national Parliaments on the Draft Treaty establishing the European Union, and to remain in close touch with them. A delegation therefore visited the various capitals to discuss the matter with the national authorities, Parliaments included, and to hear their comments. The next stage could be to review the Draft Treaty in the light of the views expressed and the comments made.2

In June 1984 the Fontainebleau European Council set up an ad hoc Committee for Institutional Affairs comprising the personal representatives of the Heads of State or Government.3 This

commit-tee was asked to submit proposals for improving European cooperation. The European Council

! An initial stocktaking will be found in Mr Seeler's interim report of 9. 4. 1985 (A2-16/85).

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chose the modus operandi, modelled on that of the Spaak Committee appointed by the 1955 Mes-sina Conference to prepare the ground for the conferences which were to draw up the future EEC and EAEC Treaties.

The Committee produced an interim report, presented to the Dublin European Council (December 1984), and a final report" which the Brussels European Council (March 1985) decided to make the main item on the agenda for the Milan European Council (June 1985).

It might be in order to compare the ad hoc Committee's report and the European Union Treaty but the exercise needs to be approached with caution. The documents have little in common.

The Draft Treaty is a well-worked text designed to replace the existing Treaties while the Commit-tee's report is little more than a list of problems and suggestions. By definition, Parliament had to be exhaustive and consistent while the Committee could afford to gloss over certain issues, concentrat-ing on matters which its members regarded as essential. The Draft Treaty was designed for entry into force as it stood while the report's sole ambition was to serve as a basis for the negotiation of a new treaty.

The Draft Treaty thus spells out procedures for bringing the Union into being and for its future operation, while the report is content to consider basic solutions to specific problems. The intrinsic value of the two documents differs. The Committee made no attempt to devise solutions acceptable to all its members. Its report sets out the majority view, minority opinions appearing as footnotes or annexes. The Committee was very divided on important issues such as voting within the Council, which means that the institution given the task of following up the report will have to reconcile these opposing views. Parliament, by contrast, made a point of searching for a compromise so that the text would be acceptable to the largest possible majority. In this respect too, the Draft Treaty is more complete than the report. However, if the two documents are read in conjunction it becomes clear that they share the same inspiration and make the same diagnosis of what is needed to achieve European Union:

(i) completion of the Community venture, in particular as regards monetary policy and freedom of movement;

(ii) promotion of economic convergence;

(iii) introduction of new policies to take account of technological developments and the need to establish a cultural Community;

(iv) aligning political cooperation and Community action and incorporating security aspects; (v) reform of the institutions to give the Union an efficient democratic apparatus;

(vi) establishment of the bases for a genuine European citizenship.

Because of these shared objectives, there is a measure of agreement between the policies proposed and the institutional reforms recommended in the report and in the Draft Treaty. However, the pro-posed solutions to specific problems do differ on occasion.

With regard to policies, the two documents are very similar and the areas covered largely coincide. The major difference is that the Draft Treaty lays the emphasis on energy policy and regional policy which, curiously enough, get no mention in the report. The report opts for the topical, attaching par-ticular importance to high technology; the Draft Treaty mentions high technology too, but deals with it in a more discreet but less complete manner. Other areas are dealt with, if not in identical terms at least in a comparable fashion, by the two documents. It would be tedious to give an exhaus-tive list.5

Two points on which the documents differ should be noted. The report seems to go further than the Draft Treaty on the question of security. Indeed, the Draft Treaty calls for a return to cooperation on

1 The report is reproduced as Annex II of this volume, p. 330.

On the Draft Treaty see Part One, Chapter VI. 10

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the economic and political aspects of security only. Any extension of cooperation to other aspects of security would call for a unanimous decision by the European Council. The report has no such reservations and extends cooperation to all aspects of security. However, Mr Dooge (Ireland) en-tered a general reservation on this section of the report. Parliament's text does not go as far as the Committee's text but the formula it comes up with is a compromise between Ireland's views and those of the other Member States. As for monetary policy, the report is less than enthusiastic about the institutional stage of the European Monetary System. While the Treaty regards this as an essen-tial step, the report sees it as no more than a possible objective.

However, these differences are minor. Both documents use the same terms to allow for the tempor-ary differentiated application of Community law, though the report would appear to impose stricter conditions than the Draft Treaty.

Indeed the report extends differentiation to cooperation, making it possible for Member States to conclude partial agreements provided no Member State objects.6

However, since the report does not set out to provide ready-made operational solutions but a basis for negotiation, it is silent on the competences of the Union. The gradual implementation of the com-petences of the Union implicit in the principle of subsidiary and concurrent comcom-petences is missing from the report.7

Although it does make a distinction between political cooperation and the Union's own policies (common action), the Draft Treaty integrates the two into a single framework and harmonizes the institutional mechanism. The report takes no stand on this, leaving the question open.

With regard to the institutions, the shared inspiration is evident. Both documents set out to give the Union efficient and democratic institutions. But on this too, the Draft Treaty is more complete than the report as a comparison of the sections dealing with each institution will demonstrate.8 Contrary

to the Draft Treaty, the report does not indicate whether the European Council is to become an institution of the Union. But it suggests that it will, since the European Council would be responsible for appointing the President of the Commission. It could only do so if it were an institution of the Union, unless of course it is merely regarded as the framework in which the governments of the Member States reach the agreement provided for by the Community Treaties. The Dooge Commit-tee considers that the European Council should give direction and political impetus to the Commun-ity.' The Draft Treaty advocates a similar approach. It gives the European Council the political ini-tiative in establishing the Union.

But its role would be weakened by other institutional changes, notably the strengthening of the Com-mission and the granting of increased powers to Parliament. In the Draft Treaty the directional role would emerge from the programme proposed by the Commission and adopted by Parliament in the investiture debate. Cooperation would be confined to the Council framework. However, the report is more precise as to procedures, advocating the establishment of a political secretariat. The Draft Treaty on the other hand leaves the Council free to take its own procedural decisions. Both texts aim to foster unity within the Council. The report believes that this can be achieved by giving a pre-emi-nent role to the General Affairs Council. The Draft Treaty goes further, suggesting that specialized Council meetings be abolished, giving more permanence to national delegations which would be led by a minister specifically responsible for Union affairs. On the voting issue, the majority view of the Committee is that there would be a return to majority voting, a vote being called for automatically at the request of the Commission or three Member States. Unanimity would be required in a limited

* The possibility of partial agreements is based on Council of Europe practice. It is not totally disregarded by the Union Treaty (cf. Article 68(2;).

' On the Draft Treaty, see Part One, Chapter III.

" On the Draft Treaty, see Pan One, Chapters II, IV and VIII.

* According to the Committeee, this role should be expanded at the expense of its current arbitrator's role. However, the decline in the arbitration role depends not on the wishes of the European Council but on the effectiveness of decision-making within the Council.

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number of specified cases only. However, three members of the Committee (Greece, Denmark and the United Kingdom) advocated retention of the present system, more frequent use being made of majority voting. Mr Dooge could not accept the majority solution. Parliament's Draft Treaty accepts the pleading of a vital national interest during a 10-year transitional period, provided that this vital interest is recognized by the Commission. The vote would then be deferred. Although Parliament's solution is undoubtedly less progressive that the Committee's majority solution, it again represents a compromise between majority and minority views.

The procedure for appointing the Commission is similar in both documents. The President of the Commission would be designated by the European Council. His authority over the members would be strengthened by the fact that he is involved in their appointment."1 The Commission would be

sworn in by Parliament, thereby reaffirming its independence and its initiating and executive roles. In the Draft Treaty, although the Commission shares the right of initiative with Parliament or the Council in exceptional cases, its intervention in the legislative process is made more effective since an increased majority is required if the legislature wishes to take a decision despite Commission opposi-tion. In the report, implicit retention of the main features of the current legislative process would allow the Commission to make use of Article 149 where the Council takes a majority decision." Par-liamentary control over the Commission remains unchanged.

Parliament becomes a co-legislator. In the Draft Treaty, the legislative process is the subject of speci-fic provisions designed to balance the powers of Parliament and the Council and to obviate deadlock. The report does not recommend granting Parliament a share in decision-making except in a limited number of areas as already suggested by the Vedel report. In the event of disagreement between Par-liament and the Council, a conciliation procedure would be set in train. There is no indication as to how it would end. Is this a point which has been left in abeyance or is the idea that conciliation ends with agreement between the two institutions, granting each of them the power to block progress? This would do nothing to make the legislative process more efficient.

The separation of budgetary powers is unclear. The Committee would involve Parliament in deci-sions on own resources in the context of multiannual planning; this links up with proposals in the Draft Treaty. However, the text is vague on Parliament's participation in the annual establishment of revenue, the coping-stone of the system. The report suggests no changes to budgetary procedure des-pite the innumerable disputes it has engendered.12 Finally, the report is more restrictive than the Draft

Treaty or Parliament's involvement in the conclusion of international treaties, limiting it to associa-tion and accession agreements.

Some of the solutions proposed in the report are shrouded in uncertainty because the institutional aspects have been left open. But the report also gives the impression that its authors wanted to devise proposals which could either lead to the revision of the present Treaties or to the conclusion of a new treaty to take their place.

There is also some uncertainty as to the next step contemplated by the authors of the report. It is time that they refer to the convening of an inter-governmental conference, but there is no indication as to whether this is to be convened under Article 236 EEC or in another context.

Two questions spring to mind: first the conduct of negotiations and secondly, participation in the negotiations.

On the first aspect the report sets out ideas which are mostly notes.

10 The actual procedures differ: in the report the Members of the Commission are appointed by the Governments on a proposal

from the President, while the Draft Treaty confers the power of appointment on the President in consultation with the Europ-ean Council.

" The Dooge Committee does not suggest that Article 149 be amended. The Council would therefore have to take a unanimous decision if it wished to depart from the Commission's proposal (What about Parliament?). Retention of Article 149 would appear to encourage deadlock in this case.

i- On the Draft Treaty, see Part One, Chapter V. 12

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Negotiations would be between government representatives, with the participation of the Commis-sion. During the course of the negotiations, there could be close contacts with Parliament in accor-dance with a procedure to be agreed between the conference and Parliament.

The provisional text agreed by the conference would be submitted to Parliament, which would then produce proposals. Areas of dispute would be the subject of a conciliation procedure leading to an agreed solution. Since this is a radical undertaking giving the Union a constitution — it goes without saying that agreement must be reached between governments, represented by the conference, and the people represented by Parliament. The text would then be submitted to national procedures. The second, far more sensitive issue is whether the venture can begin before all governments are fully prepared to take part. It should be clear that the object of the exercise is to group all current or future Member States within the Union. The aim is to pull all European democracies into the net, beginning with those which have embarked on the Community venture. No one could be excluded, notably because this could raise tricky legal problems. The ideal solution would be for all to participate in the negotiations.

The possibility that some States might object to the convening of a conference cannot be allowed to stand in the way of progress. As the President of the French Republic stated in his speech to the European Parliament, a number of Heads of State or Government could call on all interested parties to join with them in drawing up the Union Treaty. This would make it clear that the other States were free to join in the process at any time. At the end of the negotiations, the conference would have to deal with the situation of those States which did not wish to join by negotiating an arrangement which respected their rights and left the door to subsequent membership open. This solution could create legal problems but these should not prove insurmountable if there was the political will to advance while preserving the acquired rights of all. The aim is not a two-speed or two-tier Europe but rather a Union comprising all Member States of the Community. Nobody regards this objective as unattainable, but the States which regard it as essential are duty-bound to inform the others un-equivocally of their determination to make progress.

All that remains now is to speculate on the mandate the Milan European Council might give to such a conference. If it were to instruct the conference to examine the conclusions of the Dooge Commit-tee and no more, there is a real risk of reform remaining a dead letter.

But it could instruct the conference to draft a treaty to replace the existing Treaties by extending the powers of the Communities and inform the institutions accordingly. This would be very close to the Spinelli approach.

It should be possible to conclude a treaty supplementing the Community Treaties and leaving them intact. However, it would be for such a treaty to govern areas which fall within the Community's jurisdiction. These would remain subject to the Community Treaties and to the decision-making process provided for them. If this were the case, it is hard to see how the integration proposed by the Treaties could be achieved given the deadlock provoked by the institutional machinery which would remain in existence.

If the new Treaty did not include matters now falling within the Community's jurisdiction, it would be confined to political cooperation and areas such as culture. The best we could hope for would be an improved version of the Fouchet proposal.

Finally, there is nothing to rule out an approach differentiated by area. On institutional reform, a treaty amending the current Community Treaties would be ideal. On political cooperation, the report's recommendations could be codified into a solemn declaration along the lines ofthat issued in Stuttgart. On new policies, undertakings could be given to implement these under the current Treat-ies.

These hypotheses are by no means exhaustive, and the Milan European Council will have a wide range of options to choose from. Even if no action is put in hand, Parliament could press ahead on its own initiative.

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Whatever the outcome, the developments sparked off by the reforming ideas born of Parliament's initiative and the influence of the Draft Treaty on the Dooge Committee's report provides confirma-tion, if confirmation were needed, of the importance of a detailed analysis of the Draft Treaty estab-lishing the European Union.

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PART ONE

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Chapter I — The Draft Treaty, an overview

by Jean-Paul Jacqué When the European Parliament undertook to prepare the Draft Treaty of European Union, it was not exploring virgin territory. Politically, it could draw on the various processes previously set in motion to reform the Communities or to bring about European Union: precedents and setbacks — some of them relative — were available in the form of the 1953 political community project, the Tindemans report, the Genscher-Colombo initiative and the results achieved at the Stuttgart Europ-ean Council.

True, Parliament's intention seems to have been to use the same approach that was adopted in pre-paring the draft for the European political community, but, since, in the light of what happened with the Solemn Declaration on European Union, there was little possibility of the governments being able to produce a master plan for the compehensive development of the Communities, the only solu-tion still available to Parliament was for it to undertake itself the preparasolu-tion of a Draft Treaty and present it to the Member States and their parliaments.

Good care was taken, however, not to try and recreate the context of the 1950s. All talk of federal-ism and supranationality was shunned and broad compromises were arrived at with those political groups that wanted to see the rights of Member States affirmed (provisional upholding of the right of veto, caution in integrating political cooperation into the scope of the Union, etc.).

Technically, the draft drew extensively on earlier schemes. Innovation in Community institutional engineering is a rare feature and Parliament based itself as much on the Vedel report as on other papers compiled by the institutions in connection with the Tindemans report. It also extensively con-firmed solutions born of practice or deriving from the case-law of the Court of Justice.

Yet the draft, as it stands, cannot be seen as a report by experts who, free of any political constraints, are casting about for ways and means to attaining European Union. It is essentially a political docu-ment which reflects a broad consensus among the political groups. Its prime virtue surely lies not in its having met with the approval of Community lawyers and technocrats but in its having been adop-ted by a majority of 237 votes against 31, with 43 abstentions.

It goes without saying that the quest for compromise does not justify serious flaws that render the draft impracticable; but it does explain some of the silence over a certain lack of clarity in the provi-sions adopted by Parliament. On several points, the discussion which has begun among the experts and is now also going on with the national parliaments should throw up new ideas which Parliament will have to consider if, as is likely, it revises the draft in response to the reactions it has prompted. On the other hand, it would have been disturbing had the draft not reflected a broad vision — a poli-tical design for European Union — and this it indeed did. The aim of those who drafted it was to spell out the basic characteristics of the Union before considering its methods of action and planning its institutional structure.'

This study draws on some of the arguments set forward in an article written for the Common Market Law Review, 1985,1, but also considers more recent discussions.

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1. The basic characteristics

of the Union

a. The Union merges first and foremost as the

heir of the European Communities

It marks a step forward in a venture initiated by the Schuman Declaration.

The preamble of the Draft Treaty puts the Union clearly into that perspective and Article 7 affirms that existing Community patrimony is to be preserved. Some way, of course, had to be found to allow Community legislation to co-exist with the law of the Union. Affirmation of the principle that Community law is to continue to be maintained does not mean that such law is immutable and that the Union cannot change it. The solution adopted is to grant each piece of Community legislation a special place in the law of the Union. Such legislation can, therefore, be changed only by the proce-dures applicable to the relevant Union laws.

To begin with, since new laws take precedence over earlier ones, the provisions of the Union Treaty override any Community law that opposes or is incompatible with them.

In some places the Union Treaty clearly diverges from the Community Treaties, especially where the institutions are concerned. In others, it lays down new rules which may clash with Community rules. But this is exceptional. The underlying principle is that of maintaining existing Community legisla-tion as embodied in the Treaties and the acts adopted in implementing them, so that it is grafted on to the Union Treaty. The Union's objectives do not replace those of the Community but complement them.

The place of Community legislation in the legal system of the Union depends on the nature of the Community laws concerned.

Those provisions of the Community Treaties which state the aims of the Communities and the scope of the Treaties have the same legal value as the Union Treaty and can be ammended only by the pro-cedure invoked for revising the Treaty. The other provisions of the Treaties come under the heading of organic law and can be amended only by an organic law. The other Community acts and the mea-sures taken in connection with the monetary system and political cooperation can only be amended by acts adopted by the Union institutions in accordance with their respective responsibilities. It is therefore the procedure for allocating powers to the different institutions which will determine the procedure for amending each act. If, say, an act clearly falls within the area assigned to the legislative authority, it can be amended only by law. Any disputes that may arise will have to be settled by the Court.

In essence, the existence of this arrangement for the Union to succeed the Community assumes that the two cannot possibly co-exist. Admittedly, Article 7 does not pretend to settle the point and the drafters of the Treaty have taken good care not to offer a solution even in the final provisions. They believed that a solution could be found only empirically, the disappearance of the Community posing scarcely any problem if all the members of the Community became members of the Union and negot-iations were to be undertaken should some of them refuse to join. However, the concern to have the Union preserve the Community's patrimony is born of the conviction that the Community must dis-appear in order to be incorporated into the Union, for otherwise any such misgivings would be groundless, as the Community laws will continue to produce their own effect. The Union does not, therefore, emerge as an additional Community but as an entity that transcends the existing Commu-nities while assuming their mantle.

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b. The democratic nature of the Union

Though designed within the framework of a democratic Europe, the Community Treaties did not particularly emphasize that aspect. Indeed, their specific nature was such that one did not expect to find in them any special references to democracy or human rights, even though, as the Court of Jus-tice was later to demonstrate, they were to be interpreted in the light of the principles enshrined in the constitutions of all the Member States. Having a broader purpose, the Draft Treaty underlines the democratic nature of the Union. It is to be a union of democratic States and their democratic nature is one of the conditions of membership. This opening means that the Union will have to arm itself against any internal events in a Member State that might lead that country to violate the prin-ciples of democracy or fundamental rights. It was important not to disregard the Greek or Turkish precedents in the Council of Europe. As a result, Articles 4 and 44 of the draft stipulate that, should such events occur, the European Council could, with the assent of the European Parliament andonee the situation has been established by the Court, take steps to deprive the country in question and its nationals of some or all of the rights enjoyed by them under the Treaty and could go so far as to sus-pend that country's participation in the institutions of the Union. Such sanctions would not be imp-osed in the case of an isolated violation, but for serious and persistent violation.

The Union itself, according to Article 4, grants

'every person coming within its jurisdiction the fundamental rights and freedoms derived in parti-cular from the common principles of the Constitutions of the Member States and from the European Convention for the Protection of Human Rights and Fundamental Freedoms'. The rights guaranteed by the convention are thus incorporated into the Union Treaty. But the Union is not bound by the surveillance machinery set up by the convention in that this would only be possi-ble if the Union signed the convention. The wording on economic and social rights is more cautious since the Union undertakes solely to maintain and develop them to the extent that it is empowered to do so. And within a period of five years the Union will consider the possibility of its accession to the European Convention, the European Social Charter and the United Nations Covenants. These undertakings call for several comments. First, the benefit of incorporation is reserved for the Europ-ean Convention, the Social Charter being excluded on the grounds that not all its provisions were accepted by all the Member States. The reference to the covenants is even more tenuous. The Union does not regard itself as bound by them and will only consider the possibility of its accession. So one is inevitably left with the thought that the majority of Parliament's members are chary of the UN Covenants, as a result of which it is only with certain reservations that they are prepared to accept that the Union can be bound by them. But even more significant is the fact that Parliament decided not to vest the new Treaty with a declaration of human rights. Many members would have liked it to open with such a declaration, but the majority appreciated the difficulty of compiling a list of funda-mental rights and did not want to hold up the drafting of the Union Treaty on that account. The dif-ferent political groups in the Parliament do not share the same view of fundamental rights, some placing more emphasis on civil and political rights and others on social and economic rights. Con-sensus, though not unattainable, will take a long time to be reached. Care must also be taken to ensure that any such declaration is compatible with the European Convention on Human Rights. For all these reasons, Article 4(3) stipulates that within a period of five years after the Treaty has come into force the Union will draw up its own list of fundamental rights in accordance with the pro-cedure for revising the Treaty. For the time being, the principles common to the national constitu-tions and the European Convention constitute a minimum benchmark that is particularly satisfacto-ry in that the competence of the Court of Justice of the Union to uphold fundamental rights is clearly affirmed (Article 43). However, the Court of Justice can intervene to protect human rights only at Union level and with respect to measures which fall within the competence of the Union and not in a more general manner, as some members would have preferred.

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c. The Union is not intended to replace the Member States

On the contrary, the Member States conserve their sovereignty, with the Union enjoying only limited transfers of competence. The breakdown of responsibilities between the Union and its Member States is based on the principle of subordination, meaning that action by the Union is subordinate to that of the Member States. The Union is competent only in those areas where it can act more effectively than the Member States acting separately can, largely because the scale or effects of the measures concer-ned extend beyond national frontiers. This principle of subordination determines not only the break-down of responsibility as established by the Treaty, but also the way in which the Union shall use its powers when they run parallel to others, as is true in the majority of cases (Article 12). It is the last indent of the preamble to the Draft Treaty which states that the Union's exclusive powers are vested in it on the basis of the principle of subsidiarity, while Article 12(2) states expressly that clashes of responsibilities shall be decided in accordance with that principle alone. Moreover, whenever the Union acts legislatively, it must as far as possible confine itself to establishing basic principles, leav-ing it to the authorities responsible for applyleav-ing them, and more particularly the Member States, to work out the details of their implementation. The Member States are seen here to continue to play a major role even within the Union's purview. The Treaty does not provide for the creation of a huge administration to apply these laws, but relies instead on the national authorities. This desire to meet the Member States half-way may lead to different intepretations of the law in practice if the specific national circumstances demand it. Legislators will therefore be able to stipulate time limits or transi-tional measures since the aim of these practical arrangements for the implementation of the law is still its ultimate 'uniform application'.

d. Finally, the Union is to be established gradually

The Treaty is not likely to have its full effect until after a lengthy transition period that will enable the Member States to adapt to the new situation and will help the solidarity which unites them to gather strength. Three points highlight this gradual process. Union powers will be invoked only when the need arises, i.e. as solidarity develops. When legislating for the first time in the field of overlapping concurrent responsibilities, and most of them are concurrent, the Union must follow the procedure of organic law, i.e. a qualified majority, which implies that a fairly broad consensus is required. In external policy, the European Council can extend the scope of political cooperation by what will in all probability be a unanimous decision.2 Finally, the Treaty cannot put an end to the

principle of unanimity within the Council but does provide for a less harsh form of veto which will remain in existence for a transitional period of 10 years (Article 23(3)). The intention has been to ensure that, during the delicate period following the Union's birth, Member States will be able to ensure that vital national interests are taken into consideration. This loophole will disappear when common experience and institutional practice have enabled the States to arrive at a state of solidarity such that there is no longer any room for the pleading of vital interests. To take account of the spe-cial requirements of external relations, Article 68, by way of derogation in the event of new powers and responsibilities being transferred to the Union in this field, allows for the possibility of the plead-ing of vital interests beplead-ing extended beyond the 10-year transitional period.1

All things considered, the Draft Union Treaty turns out to be much less revolutionary than might have been supposed. The Union is a direct extension of the Communities and does not constitute a 'superstate'. It is simply intended to be a more effective structure than the existing ones, hence the focus on its operations and its institutions.

; The Treaty does not establish any decision-making procedure for the European Council, which in this field would have to

decide unanimously for the transfer to take place; politically, it is hard to see it doing otherwise.

J This introduces two different decision-making processes: one without 'veto' after 10 years for the powers and responsibilities it

processed at the outset, the other without a permanent veto for those transferred in the meantime.

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2. The action of the Union

The Draft Treaty spells out both the forms of action and the field in which each type of action shall be carried out. The main distinction made is between cooperation and common action by the Union, but the dividing lines between the areas covered by each method of action are not hard and fast and it is possible to move from one area to another.

a. Common action of the Union

The term 'common action' was deliberately chosen to replace the classic expression 'common pol-icy', it being feared that an identical name might create the idea that there was some similarity bet-ween the two terms.4 However, the Draft Treaty sets up a system which is specific to common

action. In fact, common action occurs from the moment that the Union intervenes anywhere under the responsibility of its institutions. As defined in Article 10(2):

'Common action means all normative, administrative, financial and judicial acts, internal or international, and the programmes and recommendations, issued by the Union itself, originating in its institutions and addressed to those institutions, or to States, or to individuals'.

The determining feature of common action is that it results from acts attributable to the Union, since it is taken by the Union's institutions.

Clearly, common action can occur only within the framework of the powers and responsibilities that the Treaty vests in the Union. Here, the Treaty distinguishes between exclusive competence and con-current competence. This distinction, which seems to have aroused some curiosity in legal circles, is not unknown to specialists in federal law. It is found, for instance, in Articles 71 and 72 of the Basic Law of the Federal Republic of Germany. It was not unknown in Community law and is proposed explicitly by the Commission of the Communities in its report on European Union of 26 June 1975.' Whenever the Treaty confers exclusive powers on the Union, this latter is alone competent to act and the 'national authorities may only legislate to the extent laid down by the law of the Union.' Ques-tions have been asked as to where national law stands in cases falling within the exclusive compe-tence of the Union if and when it has not produced any relevant legislation. The problem should not arise after considering the few instances in which the Union has exclusive powers and responsibilities and also in view of the fact that they mostly concern sectors which previously fell within Community competence and in which the Community has already acted. But Article 12 stipulates that 'until the Union has legislated, national legislations shall remain in force'. Can it be amended? In an initial ver-sion of the draft, the answer was unclear since any amendment had to be authorized by the Commis-sion. This condition has now been dispensed with, but it was noted that, in the light of the case-law of the Court and since Article 13 of the draft followed the text of Article 5 of the EEC Treaty, the power of States here was subject to Commission supervision. In the case of concurrent powers and responsibilities, the Member States may act if the Union has not. Action by the Union is subject to a condition of substance and a condition of form. The basic condition is adherence to the principle of subsidiarity:

'The Union shall only act to carry out those tasks which may be undertaken more effectively in common than by the Member States acting separately, in particular those whose execution requires action by the Union because their dimension or effects extend beyond national frontiers'. This ensures that the Union will exercise its concurrent powers only when its action is really necess-ary. The question has been asked as to how the principle of subsidiarity will be maintained. The point at issue is whether the Court would uphold an appeal for annulment based on failure to respect

In the EEC Treaty the term 'common action' is used within the framework of the agricultural policy (Article 41 ) and of com-mercial policy (Article 111). In both cases common action is distinguished from coordination.

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the principle of subsidiarity. It might find that this was a question to be left to the legislators, but it might also decide to check whether the legislators' view was not at least tainted by an obvious error. Parliament wished to leave the question open to decision by the Court. Moreover, in formal terms, the first intervention by the Union in a sector covered by concurrent competence is subject to the passing of a law adopted according to the procedure of organic law, i.e. by a qualified majority of the legislative authority consisting of Parliament and the Council. Wherever the Union has acted in a specific sector, that sector, of course, comes under the exclusive competence of the Union, i.e. the Member States cannot take any further measures unless they are so delegated by the law of the Union. The scope of the Union's exclusive powers and responsibilities is limited since they cover only free movement, the regulation of trade between Member States and the regulation of competition at Union level. In external relations, commercial policy is the only field in which the Union has exclu-sive competence. All the Union's other responsibilities in respect of economic policy, policy for socie-ty and external relations are concurrent, but obviously those areas in which the Communities had implemented common policies fall within the exclusive competence of the Union by virtue of the principles concerning the transfer of the existing Community legislation to the Union.

b. Cooperation

According to Article 10, cooperation is conducted by the Member States within the European Coun-cil. The agreements thus reached within the European Council are implemented by the Member Stat-es, but provision has been made for them also to be implemented by the Union's institutions under the procedures laid down by the European Council.

The initial versions of the draft made a clearer distinction between cooperation and common action and showed that common action could exist only in the areas where the Union had exclusive or con-current competence. For cooperation, the Union, or more precisely the European Council, consti-tuted a forum of negotiation between the Member States.

The only obligation imposed on them by the Treaty was to discuss in that forum problems subject to cooperation. The wish expressed by certain British Conservatives to make the system more flexible by allowing the European Council, if need be, to call on the assistance of the other institutions within the framework of political cooperation helped to make the working of the draft more ambiguous. But it is still clear from Article 10(3) that cooperation means the commitments (in the sense of inter-national commitments, agreements) undertaken by the Member States within the European Council (and not by the European Council). These commitments cannot be part of Union law and are gover-ned by international law if they involve commitments intended to have the effect of laws. Reading the Treaty, one has the impression that the key area of cooperation should be political cooperation in international relations, and, apart from the chapter on international relations, cooperation is men-tioned only in Articles 46 and 54. Article 46 covers the coordination of national laws in areas that fall outside the powers and responsibilities of the Union and Article 54 provides for the setting-up of a framework for industrial cooperation. While the value of these activities should not be underesti-mated, they are not as crucially important as political cooperation. The intention was to dovetail political cooperation into the Treaty without any basic change in operation. Article 66 broadly defines its scope since it comes into play, in the absence of common action, on issues where the inter-ests of more than one Member State are involved, this including matters relating to the political and economic aspects of security. Article 67 defines the institutional machinery of political cooperation and, in particular, the role of the Council of the Union and the Commission, under the responsibility of the European Council. The European Council may extend the field of cooperation, 'in particular as regards armaments, sales of arms to non-member States, defence policy and disarmament' (Article 68). One can immediately see the effect of these provisions, which attempt to follow up the ideas that have been floated on the independent role that Europe might play in defence. True, the wording is cautious, since a priori cooperation does not extend to the military aspects of defence but only to the political and economic aspects of security in so far as any clear distinction is possible; a unanimous

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decision by the Member States will be necessary in order to extend cooperation to defence in all its aspects. Nevertheless, a process has been created which can enable the Union to tackle gradually, whenever the need is unanimously felt, new areas that are just as essential as those involving defence. Here again, we find the stamp of realism. While it would have been tempting, albeit Utopian, to include these issues within the scope of the Union's competence, they appear in the small print under the heading of cooperation.

c. Transfers from cooperation to common action

Originally, the draft presented by Mr Spinelli spoke of potential as well as of exclusive and concur-rent powers and responsibilities. These were areas which remained subject to cooperation as long as the European Council had not decided unanimously to make them the object of common action coming under its exclusive or concurrent competence. For the sake of simplicity the Draft Treaty does not use the term 'potential competence' but allows, in some instances, for matters coming under the heading of cooperation to be transferred to that of common action by decision of the European Council after the Commission has been consulted and subject to the agreement of Parliament. The cases in which such transfer may be made are laid down in the Treaty and are mainly to be found in the sphere of international relations. Internally, this possibility can be resorted to only under Article 54 in order to convert certain forms of industrial cooperation into common Union action. Conver-sely, Article 68(2) stipulates that in the field of international relations any area of cooperation may-become a field of common action.' But, cautiously, it allows for this principle to be waived in certain circumstances. First, the process may be reversed and the European Council may unanimously decide to place the field back under the heading of cooperation, or even that of competence of the Member States. Secondly, in that field, the possibility of pleading a vital interest under the afore-mentioned procedure will be available at any time.

Though the first reservation need not concern us particularly, for the opposing opinion of one Mem-ber State will be enough to prevent reversibility, the second is more serious. It has its origins, of course, in the desire to allay national fears in the face of an extension of the Community's powers and responsibilities. A case in point is defence. The European Council might unanimously decide to include it under the heading of cooperation and then to integrate it into a common action, in other words, it might decide that it falls within the competence of the Union institutions. The intention understandably was to give Member States additional guarantees over and above the requirement that any decision to transfer these areas from the heading of cooperation to that of common action must be taken unanimously.

In the opinion of Parliament's Legal Affairs Committee, the unanimity of Member States may not be enough and national ratification procedures may be required. The Member States' representatives acting within the framework of cooperation are subject to their respective constitutional provisions and are bound by them in any commitments they enter into, which, if need be, may be subject to rati-fication. It is therefore not true to say that these provisions would enable a European army to be created over the heads of the national parliaments!

Though the transfer from cooperation to common action is possible in the cases explicitly provided for by the Treaty, it does not include the equivalent of Article 235 of the EEC Treaty, which allows the Council to take appropriate measures when action is necessary to attain one of the objectives of the Treaty. Those who drafted it believed that the extension of the Union's powers and

responsibi-Article 68(4) even allows for the possibility of transferring a specific problem from the heading of cooperation to that of com-mon action for the period required for its solution. The intention was to allow the Union to act as such solely while an interna-tional crisis lasted, as in the case of the Falklands war.

The expression is clumsy, for placing a matter back under the heading of cooperation implies that it comes under the compe-tences of the Member States again; the intention was to show that from then on the matter would be excluded from those on which cooperation was obligatory.

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lities contained in the draft justified the Union's being unable to extend them beyond what was laid down. The list of powers and responsibilities is therefore exhaustive. However, in social and health policy, the use of the words 'in particular' before the list of the Union's responsibilities allows it to do things not mentioned in the text of the Treaty.

Without a detailed appraisal of the Union's powers and responsibilities being made, it is enough to note that, besides the field of international relations as just defined, they mainly cover the economic policy and policy for society, which includes not only social but also regional policy, the environ-ment, culture, education, research and information. The aim is to achieve what was intended by the Community Treaties but has not been put in practice and also to define new fields in which Parlia-ment has keenly felt the need for common action.

Some have expressed the fear that the scale of the Union's responsibilities may turn it into a super State (see Pinder). This view is not shared by everyone, since Mr Ehlermann believes that the part of the draft devoted to this aspect is the least innovative of all.' This is not the place here to become involved in this argument, but it should be recalled that an appraisal of these responsibilities is not enough to form an opinion; one must also look at the powers granted to the Union to discharge these responsibilities. In the economic sphere, the Union will more often than not play only a coordinating role and will not be able to force Member States into doing its bidding; it can only urge them to do so (see Article 50 concerning conjunctural policy, and Article 53 particularly (d) and (e) on sectoral policy). But there is no point in defining new policies without setting up the institutions capable of carrying them out.

3. The institutions of the Union

Institutional thinking has been on the basis of the existing system. Though changes are proposed, the present institutional machinery remains, even if an effort has been made to render it more democratic and efficient.

a. Changes in the institutional machinery

At first glance there seems to be little change. The European Council, Parliament, the Commission and the Court are still there, while the Council of Ministers takes the name of the Council of the Union.

1. The European Council, the authority responsible for cooperation, remains unchanged, themain innovation being that it has been dovetailed into the framework of the Treaty. The draft contains no provisions on how the European Council is to operate, it being felt that it ought to be master of its own procedures. As for its powers, they are the same as those of the present European Council in the field of cooperation, plus the traditional powers of the head of a parliamentary State, such as that of appointing the head of the executive, the President of the Commission, and the right of address. The links between the European Council and Parliament remain as they are.

2. As regards Parliament, the Treaty leaves it to an organic law to lay down a uniform electoral procedure and does not question the allocation of seats between the Member States. The main changes concern the powers of Parliament, which was hitherto only one arm of the budgetary auth-ority but now becomes an arm of the legislative authauth-ority as well. It will play a bigger role in the

Claus Dieter Ehlermann, 'Vergleich des Verfassungsprojekts des Europäischen Parlaments mit früheren Verfassungs- und Reformprojekten' in: Schwarze/Bieber (Hrsg.) Eine Verfassung für Europa, Baden-Baden 1984, p. 269 (276).

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conclusion of international agreements' and, while continuing to exercise a monitoring function over the Commission, will now be empowered to invest it.

3. The Council of the Union is the heir of the Council of Ministers of the Communities. Parliament wished to revert to the practice of specialized Councils and the draft provides for a single Council, whose composition is relatively permanent, since the delegations appointed by each Member State should broadly speaking remain the same as long as the State has not designated other members. Moreover, each delegation is to be led by a minister who is 'permanently and specifically responsible for Union affairs'.

This follows the old idea of Ministers for European Affairs. It is thus hoped to establish the perma-nence of the Council since only a change in the composition of national governments would allow any change in the chairmen of the national delegations. It is also hoped that those ministers who take part in all the Council debates will be assigned within their own countries the task of coordinating all activities relating to the Union. This would strengthen their authority and consequently that of the Council.

The Community rules have been retained for the weighting of votes in the Council. As was men-tioned earlier, when the Council decides by a majority it will be possible for a transitional 10-year period to plead a vital national interest, but this possibility has been carefully kept within bounds. Following the suggestions made at the time of the Stuttgart Solemn Declaration on European Union, the Member State's vital interest must be jeopardized by the decision to be taken and recognized as such by the Commission. When this is the case, the vote is postponed so that the matter can be re-examined while the grounds for requesting postponement are published.

This solution achieves a compromise between the proponents of vital interest and those in favour of a more integrationalist solution. It has therefore come under fire from all quarters. It is attacked as confirming the Luxembourg compromise, but it has been claimed that the essential feature of a vital national interest is that only the one who pleads it can judge its authenticity. Finally, the text of the draft says nothing about repeated requests for postponements. Are they possible or not?

If they are, then we have a veto system. In the Union's infancy much will depend on practical deve-lopments and on the Commission's authority.

In terms of its powers, the Council emerges clearly as the other arm of the legislative and budgetary authority. But it performs other functions, particularly in the field of international policy. If it is regarded as a second chamber, it is a chamber vested with important powers more like the United States Senate than a weak one such as the German Bundesrat.

4. The authors of the draft wanted to turn the Commission into an executive vested with real auth-ority, authority which it takes from its manner of appointment since that owes as much to govern-ment as to the people. The President of the Commission is to be appointed by the European Council after the European elections. He will then form his Commission after consulting the European Council. This arrangement should strengthen the Commission's cohesion since, while due considera-tion is given to the proposals by the Member States, it is the President who appoints the Commissio-ners.

The Commission, and it is here that its democratic legitimacy emerges, is invested by Parliament on the strength of its programme. It may be dismissed following a motion of censure passed by a major-ity of Members of Parliament and of two-thirds of the votes cast. Some observers have claimed that these rules are those of a parliamentary system but, besides the fact that they are not very different from the spirit in which the appointment of the Commission should be made since the Stuttgart Solemn Declaration, it should be pointed out that the conditions that would have to be met by a vote of censure make it hard to use, since a 'minority' Commission could remain in office as long as it

Exogenously perhaps, since it participates in the approving of all international agreements. The fate of administrative or techni-cal agreements should probably be reserved . . .

Riferimenti

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