The EU (State)Constitution...Debate on its first 16 Articles

national | miscellaneous | news report Saturday March 08, 2003 19:51 by Anthony Coughlan jcoughln at tcd dot ie 00 32 2 284 65 67

The EU (State)Constitution...Debate on its first 16 Articles

EU Convention Newsletter . . . Wednesday 5 March 2003 (Forwarded for your information from Henrik Dahlsson, Secretary-General, TEAM,Brussels, on behalf of the Forum for Democracy group in the EU Convention, summarising the most recent debate on the first 16 Articles of the proposed EU State Constitution)

INTRODUCTION:

The Praesidium has received more than 1000 amendments for the first 16
articles. President Giscard d'Estaing underlined that he would keep the
deadline of June 2003 and therefor introduced two informal meetings the
5
March (Arts. 8-16) and 26 March (Arts. 1-7). There was an extensive
debate
on the word "federal" in the first article; which was welcomed by many
speakers but also received strong criticism. Furthermore, the question
of
whether to refer to religion and God in the Constitution was debated.
Giscard concluded that the religious heritage would only be referred to
in
the preamble, as it should have no legal nature. The debate on the
division
of categories focused on two models: either creating a clear definition
of
the Union's competences (a Competence Catalogue) or creating broader
categories of competences. The debate on objectives, values and the
Charter
of Fundamental Rights, did not bring more clarity for the direction of
a
consensus. The articles 24-33 on simplification, legislation methods
and
instruments were presented and will be discussed on 17-18 March. Thus
the
roadmap of the Convention's future work is as following:

? 5th March and 26 March - informal meeting (more dates may appear)
? 17-18 March - Presentation of financing and the Union's policy.
? 3-4 April - Presentation of the Union's institutions and democratic
foundation.
? 15-16 May - Presentation of the whole draft Constitution.

The presented articles will always be discussed in the following
plenary
session.

THE FEDERAL NATURE OF THE UNION

The very nature of the European Union was debated. The fact that the
first
article of the draft Constitution pinpoints that the Union shall
operate on
a federal basis was heavily disputed. Where some delegates stressed
that
the federal nature of the Union could not be understated, others called
for
an omission of the word "federal" from the Constitution.

A large group of speakers favoured the use of the word federal. For
example
Mr. Duff (UK, MEP), who said the draft should be as clear as possible
on
this point. He mentioned that the federal nature of the European Union
is
already there and it should not be necessary to be either timid or
defensive on this fact. Mr. Brok (Germany, MEP) stated, that reality,
and
especially the current international crisis - show that the Union is
only
successful when it acts as a Union and not on an intergovernmental
basis.
Mr. Linden (Netherlands, NP) agreed and said the federal basis should
be
the heart and soul of the new Constitution. This was supported by Mr.
Vitorino (Belgium, Commission), Mr. Rupo (Belgium, NP) and Mr. Borrell
Fontelles (Spain, NP). Some speakers - including Mr. Spini (Italy, NP)
-
referred to the disappointment of younger generations in Europe, if the
word federal and thereby the federal ambition - was not included in the
text.

Some speakers expressed their opposition to the explicit use of the
word
federal. Mr. Heathcoat-Amory (UK, NP) argued that the aim of providing
a
clearer and more comprehensive wording in the Constitution would not be
obtained by using a word like federal. He was backed by Baronesse
Scotland
of Asthal (UK, Gov.), who stated that there must be a better way to
describe the way Member States shall coordinate their efforts to
achieve
common goals. Also Mr. Bonde (Denmark, MEP) disapproved of the term
federal. "A clear division of powers between the federal level and the
nations is missing. It looks more like a French unitary state than the
American federation. In this Constitution it is up to the federal
authorities to decide what is left to the nations", he said.

Mr. Fayot (Luxembourg, NP) who spoke on behalf of several members from
the
socialist group in the convention went for a compromise, wanting to use
the
expression "Community method" instead of federal. He was supported by
Mr.
Brok (Germany, MEP) and Mr. Wuermeling (Germany, MEP), who both
stressed
the importance of defining where the Union's competences come from, and
therefore to mention the will of the people.

According to President Mr. Giscard d'Estaing the Union should be seen
as a
unique entity whose definition cannot be found in books of classical
theory. It will be a federal approach without making a federation as
such.
"No matter if the word federal is deleted or not from the text we have
to
explain the relationship between the Member States and the Union" he
said.

The discussion of the "federal nature" was rooted in a parallel debate
on
where the legitimacy of the Union should arise from. A distinction was
drawn between state versus nation and citizens versus people.

For example Mr. Balázs, (Hungary, NP) stressed that in many of the
applicant countries state and nation are not necessarily the same
thing.
The national identity belongs to the people and not to the member
states.
Where some speakers wanted to emphasise, that the powers of the Union
derives from the will of the people, Mr. Brok (Germany, MEP) suggested
that
"people" should be replaced by "citizens", since it would then be
easier to
make references to citizens' rights.

At the same line Mr. Giscard d'Estaing underlined that the term
citizens -
in contrast to the term people, that can be defined broadly as a
community
of human beings, has a political meaning linked to the enjoyment of
legal
rights. He said that in this way there should be a distinction in the
Constitution between the people, the citizens and the member states,
since
every entity in this kind of trinity, has a different role to play.

Where the draft text suggests that the Union shall respect the national
identities of its Member States, many speakers suggested a respect of
sovereignty of the member states instead. (For example Mr. Bonde
(Denmark,
MEP), Mr. Kirkhope (UK, MEP), Mr. Carey (Ireland, NP) and Mr. Abitbol
(France, MEP).

THE NAME OF THE UNION

Even though the discussion of the name of the new entity established by
the
draft Constitution is scheduled for a later date, many members
expressed
their satisfaction with the current name European Union. Not at least
because this name is familiar to the people.
Some members also made a call for more symbols of the Union. Next to
the
flag and hymn of Europe, there should be a common motto, a song, etc.
to
unite the peoples.

RELIGION

The invitation from Mr. Giscard d'Estaing to openly discuss the
reference
to religion was welcomed by many members of the Convention. Firm views
were
expressed on this highly controversial issue concerning the roots and
cultural heritage of Europe. The lines were drawn between those who
wanted
a reference to God, or THE more specific the Judeo-Christian tradition,
and
those who do not believe there should be any mention of religion in the
Constitution.

Ms. Berès (France, MEP) suggested a firm distinction between the state
(Union) and the church. "The convention is about to construct a
democratic
and legal power, not a spiritual power", she said. She further finds
that
the Charter of Fundamental Rights is clear on this point. Many
delegates
shared her views - among them Ms Hjelm-Wallén (Sweden, NP) and Ms.
Paciotti, (Italy, MEP). Ms. Kaufmann, (Germany, MEP) argued, that there
should be no distinction in the Union between believers and
non-believers.
Some speakers mentioned that Greek philosophy has been just as
important
for European values and identity as religion.

In contrast Mr. Wittbrodt, (Poland, NP) will like the Constitution to
stress that Europe's values are founded on religious values. Not
necessarily by mentioning of a specific religion but a referral to God
and
specific religious values as done in the Polish Constitution. However,
Mr.
Fini (Italy, Gov.) believes that the European identity is rooted in the
Judeo-Christian values. Mr. Haenel (France, NP), Mr. Brok and Mr.
Tajani
(Italy, MEP) expressed similar views.

President Giscard d'Estaing said that in the next draft there will be a
reference to religious heritage in the preamble but not in the articles
as
such since these should be of legal nature.

CHARTER OF FUNDAMENTAL RIGHTS (Art. 5.1)

The inclusion of the Charter of Fundamental Rights in the Constitution
was
another big issue in the debate on values of the Union. There was, as
in
previous plenary sessions, a general consensus that the Charter of
Fundamental Rights should be included in one way or another in the
Constitution. However no general agreement was reached.

Some members of the convention want the Charter or some parts of the
Charter included in the beginning of the Constitution to avoid an
overlap
with Art. 2 (values) since the same values would have to be repeated
twice.
At the same time this placement will stress the great importance of
citizens' rights. This was supported by Mr. Meyer (Germany, NP), Mr.
Arabadjiev (Bulgaria, NP), Ms. Paciotti (Italy, MEP), Mr. Farnleitner
(Austria, Gov.).

Many other speakers argued that even though the Charter is important it
does not have a form suitable for the beginning of the Constitution and
therefore it would be better to place it in another part of the Treaty.
Commissioner Mr. Barnier argued along this line together with Ms.
Maij-Weggen (Netherlands, MEP) and Ms. Tiilikainen (Finland, Gov.). Mr.
Kutskova (Bulgaria, Gov.) suggested to place the Charter in a protocol.

A small minority of the speakers stated that the Charter should not be
legally binding at all. For example Ms. Scotland of Asthal (UK, NP),
thinks
that the Charter, though very welcome, was not drafted in a manner
applicable to be put in a treaty.

OBJECTIVES (Art. 3)

As for the objectives of the Union there was an overlap with the
discussion
of values. For example equality - many members mentioned equality
between
men and women - is seen as a value by some while for others it is an
objective. Mr Ben Fayot (Luxembourg) spoke on behalf of several
socialist
members of the Convention when he stressed the need to include the
fight
against poverty and social exclusion among the objectives and for
social
justice to be considered as a value. The cultural and linguistic
diversity
of the Union was also stressed as a value of the Union.

Mr. Villepin referred more generally to strengthening the European
social
model.
Ms. Maij-Weggen (Netherlands, MEP) also stressed that environmental
protection should be an objective and suggested an inclusion in the
text of
a social ecological market economy.

Some speakers were concerned that the aquis communautaire would be
neglected in the Constitution. Both Ms. Thorning-Schmidt (Denmark, MEP)
and
Ms. Dybkjær (Denmark, MEP) referred in particular to the absence of
some of
the new objectives called for by many members of the Convention. They
mentioned equality between men and women, special rights for disabled
people and children's rights as issues where it would be "unacceptable
to
retreat from the aquis". President Giscard d'Estaing answered that
there
would be absolutely no backtracking from the aquis.

THE COMPETENCE DEBATE

Vice-president Mr. Amato initiated the debate on Title III: The Union's
competences, by stating that the goal was to give the citizens a clear
picture of what is decided where or as Mr. Lenmarker, (Sweden, NP)
phrased
it, "who to blame for what". The very heart of the Union's democratic
deficit is that you don't know who to blame.

The competences of the Union are laid out in article 8-16. These
articles
can be divided into four categories: 1) The guiding principles (8-10),
2)
the supranational decision making method (11-12, and 15), 3) the
intergovernmental decision making method (13-14), and 4) the
flexibility
clause (16).

CATEGORIES OF COMPETENCES OR A COMPETENCE CATALOGUE?

The Praesidium's suggestion for the basic principle of division of
powers
between the Member States and the Union is that the "competences not
conferred upon the Union remain with the Member States". In the three
supranational articles (11, 12, and 15) the Praesidium has made a list
of
competences under each article, but the Praesidium stressed strongly
that
these lists were not exhaustive. The Praesidium is not trying to create
a
Competence Catalogue but categories for the competences. This approach
enjoyed broad support in the Convention (for example Mr. Fischer,
(Germany,
Gov.), Mr. Antunes, (Portugal, Gov.), Mr. Dastis, (Spain, Gov.), even
though some, as for example Mr. Fayot, (Luxembourg, NP), wanted the
list
expanded and others, as for example Mr. Wuermeling, (Germany, MEP),
wanted
it shortened. Several suggestions for amendments to the list of the
Unions
exclusive competences were put forward during the debate.

Mr. Heathcoat-Amory, (UK, NP) argued that the present drafting fails to
reach the Praesidium's goal. Instead of creating clarity, it is
ambiguous
and lacks check and balances. Instead the powers should be angered in
the
national democracies of the Member States. This was supported by both
Mr.
Abitbol, (France, MEP) and Mr. Querió, (Portugal, MEP).

Many German members of the Convention (Mr. Brok, (Germany, MEP), Mr.
Hänsch
(Germany, MEP) and Mr. Teufel, (Germany, NP)) also criticised the
Praesidium's approach and called for a clearer division of the
competences
into the three categories, a Competence Catalogue. For Mr. Teufel,
making a
clear division of competences is the test of the Convention's work.

But while the German attacked the proposed division for not being clear
enough Mr. Duff (UK, MEP) is of the opinion that the division is too
rigid.
This seemed to be supported by Mr. Barnier, (France, Commission), who
argued that the division of competences should be of a pure political
nature, and Mr. Serracino-Inglott, (Malta, Gov.), who argued that the
demarcation should be based on the principle of subsidiarity and the
principle that the closer an issue is to culture and national identity
the
more it should be a national competence. Finally Ms. Tiilikainen,
(Finland,
Gov.) suggested that the guiding principle should be that each of the
objectives stated in article 3 should have a corresponding legal basis
and
vice versa.

ECONOMIC COORDINATION(Art. 13)

Article 13 sets out that the Union shall coordinate the economic
policies
of the Member States. This formulation spurred much debate about
content as
well as procedure. A clear majority of speakers argued that the article
should be expanded by including social and employment policy. Mr.
Schmit,
(Luxembourg, Gov.) especially underlined the importance of a strong
reference to employment because this was what the citizens of Europe
expected from the Union. The call for inclusion of social and
employment
policy could in many ways be seen as a concrete reflection of the two
big
political groups in the European Parliament's (the Socialist and the
Christian Conservative) call for a social market economy as the basic
societal model for Europe. But a small minority of speakers wanted to
weaken the article. Ms. Hjelm-Wallén, (Sweden, Gov.) suggested that the
article should talk about coordination of the economic policies in the
Union, not the Union coordinating the economic policies, and Mr.
Dastis,
(Spain, Gov.) suggested that the Constitution should merely guarantee
that
there would be economic coordination.

The formulation "Union" in article 13 created a debate about the
institutional triangle of the Union. Some, for example Mr. Tomlinson,
(UK,
NP), wanted it clearly stated that it is the Council that coordinate
the
economic policies instead of the loose term Union. Others didn't feel
that
the council was a real part of the Union and therefore wanted the
Commission and the Parliament more involved. This spurred a debate
about
the status of the Council in the institutional set up of the Union.
Especially Mr. Borrell Fontelles, (Spain, NP) and Mr. Duff, (UK, MEP)
underlined that the Council is an institution under the Union. But
Vice-President Mr. Amato said that this was one of the questions that
should receive more thoughts and further debate.

THE FLEXIBILITY CLAUSE (Art. 16)

The suggested Article 16 replaces Article 308 of the TEC (the so-called
rubber paragraph) in the Constitution giving the Union the possibility
of
taking appropriate measures if the Union finds itself in a situation
where
it doesn't have the necessary powers to attain one of the objectives
set by
the Constitution. Most of the speakers supported this article, but the
decision-making procedure involved caused some debate. Mr. Lekberg,
(Sweden, NP) argued that there should be no involvement of the European
Parliament in the decision procedure (in the Praesidium's suggestion,
it
should give its assent). Mr Antunes, (Portugal, Gov.) and Mr. Spini
(Italy,
NP) argued that the Council should use qualified majority voting
(whereas
it should use unanimity in the Praesidium's suggestion).

Mr. Teufel, (Germany, NP) and Mr. Wuermeling, (Germany, MEP) are of the
opinion that the use of art. 16 should be limited to the Single Market
(as
the present art. 308 TEC) and the Economic and Monetary Union and have
a
duration of three years.

OTHER DEBATES ON COMPETENCES

Mr. Borrell Fontelles, (Spain, Gov.) wanted it to be made clear that
the
subsidiarity principle means that decisions should be taken at the
level
most appropriate and not necessarily the lowest level. Furthermore he
and
others called for a renaming of the category "exclusive competence" so
it
would be called "own competences".

Mr. MacCormick, (UK, MEP) suggested that the subsidiarity principle
should
be extended to cover the category: Exclusive competence (whereas it
only
covers Shared Competence in the Praesidium's draft).

It was also discussed under which category the Single Market should
fall:
Mr. Spini (Italy, NP) and Mr. Brok, (Germany, MEP) argued that it
should
fall under "Exclusive competence". Mr. Duff (UK, MEP) supports this
suggestion under the condition that fiscal policy was excluded and
subsidiarity applied. Ms. Hjelm-Wallén (Sweden, Gov.) wants the Single
Market to be under "Shared competence" and Mr. Hololei, (Estonia, Gov.)
wants it to be under the competence of the Member State.

COMMON FOREIGN AND SECURITY POLICY (CFSP)

The President of the Convention, Mr. Giscard d'Estaing, referred to the
theme of the Common Foreign and Security policy already in his opening
statement of this session in his analysis of the serious divisions in
Europe over policy towards Iraq. The President thinks that had the
countries followed the Maastricht decision to reflect together before
going
public, the division in Europe would not have been so grave. But he
also
stressed that institutions are useless without political will. Many
other
members of the convention supported the President in this critique of
the
Member States' policy and Mr. Fischer, (Germany, Gov.) called for a
stronger CFSP within stronger institutions.

In Title III: Division of Competences, the Common Foreign and Security
Policy (CFSP) has its own article (Art. 14). Here it is stated that the
Member State shall support the Union's CFSP and refrain from action
contrary to the Union's interests. As one of the few speakers, Baroness
Scotland of Asthal, (UK, Gov.) supported the Praesidium's suggestion of
putting CFSP in its own article because it shows that it is another
kind of
competence. But most speakers agreed with Mr. Borrell Fontelles,
(Spain,
Gov.) and Mr. Carnero González (Spain, MEP) in their call for the CFSP
to
fall under the exclusive competence of the Union. Also Mr Brok,
(Germany,
MEP) called for the use of qualified majority voting in CFSP and Mr.
Lequiller (France, NP) called for the inclusion of a reference to the
implementation of a defence policy (whereas now the article only talks
about the framing of one), which was widely supported.

TEN NEW ARTICLES ON THE EXERCISING OF UNION COMPETENCES

President Giscard d'Estaing opened the Friday session by presenting the
Praesidium's suggestion for Title V: Exercise of Union competence (art.
24-33). The drafting of these articles is based on the suggestions by
the
working group on simplification chaired by Vice-president Mr. Amato.
The
goal is to meet the demand from Laeken for simplification. This is done
by
drastically reducing the number of instruments and removing the pillar
structure so that the instruments apply to all areas of the
Constitution.
There will be five instruments: legislative acts (law and framework
law),
non-legislative acts (regulations and decisions), and recommendations
and
opinions. The most controversial suggestion, according to Giscard
d'Estaing, is a suggestion for a delegation act making it possible to
delegate certain competences from Council/Parliament to Commission.
These
articles will be debated at the session on 17-18 March.
Moreover two protocols, one on the National Parliaments and one on
subsidiarity, were presented.

FROM HERE TO THE CONSTITUTION - THE CONVENTION'S FUTURE WORK

The issue of the time-frame for the convention's work was, once again,
subject for debate. Giscard d'Estaing clearly stated that the
Praesidium
intends to stick to the June deadline. Therefor the Praesidium will
present
the next articles in the session 17-18 March on Financing and the
Union's
policies. Next, articles about the Union's institutions and democratic
life
will be presented on 3-4 April, and the whole draft Constitution will
be
presented on 15-16 May. To meet the criticism from many convention
delegates about the lack of time for discussion the Praesidium further
suggested holding informal meetings and reducing the speaking time per
speaker to two minutes, thereby giving everybody an opportunity to
voice
their opinion.

Mr. Bonde (Denmark, MEP) strongly criticised both the June deadline and
the
reduction of speaking time. Instead he wants the deadline to be moved
to
December so that there is enough time for debate. Giscard d'Estaing
rejected this suggestion by arguing that the deadline was set by the
European Council and that if Mr. Bonde wanted their decision changed he
should go to his national government and not the Convention.

The first two informal meetings will be held on 5 March about the
Union's
competences (Art 8-16) and 26 March about the definition of the Union.

____________________

Written by Peter Jonasson Pedersen and Kristine Hove; Edited by Michael
Strangholt; EDD Group, European Parliament

____________________
Henrik Dahlsson
Secretary General TEAM
(The European Alliance of EU-critical Movements)

TEAM Secretariat:
The European Parliament
Rue Wiertz 2H 246
1047 Brussels
BELGIUM
E-mail: [email protected]
Tel: 00 32 2 284 65 67
Fax: 00 32 2 284 91 44
Website: www.teameurope.info