46th CONVENTION NEWSLETTER
Report on the Convention plenary session, 3-4 April 2003.
Discussion on Freedom, Security and Justice art. 31 and part II, and Unions Finances art. 38-40.
Introduction: There was major split in the debates on the balance of power amongthe institutions, common border policy and a European Public Prosecutor. Though, the notion of having a common asylum and immigration policy a consensus was emerging. Moreover, there was consensus on giving the European Parliament more influence on the Union's Finances. There was also a majority in favour of abolishing unanimity voting in the Council on budget and expenditures, however there are still a few governments against it. More convex was the debate on the possibility for the EU to collect income tax.
Area of Freedom, Security and Justice
The debate on Thursday focused on the Area of Freedom, Security and Justice (AFSJ). The articles were presented on the last formal meeting of the convention (see 42nd Convention Newsletter). The legal basis for AFSJ consists of one article in the first part (art. 31) of the Constitution and 23 articles placed in the second part, fleshing out the article in the first part. The first 10 articles of the 23 articles present the overall framework of the AFSJ (role of the Council, Parliament and so on), and the next 13 articles are divided into four chapters (Chapter I: Policies on border checks, asylum and immigration; Chapter II: Judicial corporation in civil matters; Chapter III: Judicial corporation in criminal matters; and Chapter IV: Police corporation).
Vice-president Amato initiated the debate by stating that the Praesidium had tried to stick to the compromise achieved in the working group, even though there are divided opinions within the Praesidium. This was also reflected in the more than 700 amendments tablets by members of the Convention. This was contested by Mr. Heathcoat-Amory (UK, NP), who said that not only had the conclusions from the working group not reflected the diversity in group, but the Praesidium went further than the conclusions of the working group.
There was a general consensus among the speakers that this area was one of the most important areas for developing a European policy. References to terrorism, Iraq, human trafficking and so forth were made to underline this point. Mr. Hain (UK, Gov.) said that there was a need to move forward on Justice and Home Affairs, and Mr. Christophersen (Denmark, Gov.) compared Justice and Home Affairs to the single market, saying that in this area the time for national solutions had come. For Mr. Bonde (MEP), this is a wrong conclusion. The answer to the above question is not an over-centralised EU-policy, but instead cooporation among countries where the national parliaments always have the last say is the way forward. The risk according to Mr. Bonde is not just over-centralisation, but also de-democratisation because both the scrutiny of a critical parliament and critical press is lacking at the European level.
Dissolving the pillar structure of the community
The elements to constitute the Area of Freedom, Security and Justice have for most part been placed in the intergovernmental Pillar III (called Justice and Home Affairs). Since dissolving the pillar structure has been one of the Convention's goals, the balance among the institutions was at the centre of the discussion.
The lines of argument put forward can be divided into two main lines. The first line is that the precondition for dissolving the pillar structure is keeping the Member States' control in crucial areas by using unanimity voting in the Council and giving national parliaments a special role. This was supported by many speakers such as Mr. Hain (UK, Gov.), Mr. Helle (Finland, NP), Mr. Christophersen (Denmark, Gov.), Mr. Haenel (France, Gov.) and Mr. Teufel (Germany, NP).
The other line of argument was that this area should be communitised by putting it under the general legislative procedure. For Mr. Vuggenhuber (MEP), doing away with the pillar structure is a core question of the democratic life of the Union. He expressed understanding for the Member States that wish to keep the power, but he warned that this would have far reaching consequences for both the area as such and the democratic legitimacy of the Union. Also Ms. Maij-Weggen (MEP) warned against the intergovernmental trend because it would only dilute positions, which was not acceptable when talking about fighting crime. Mr. Villepin (France, Gov.) also argued for extending QMV, but this was preconditioned by strengthening the role of both national parliaments and the European Parliament since these institutions would give democratic legitimacy to the area.
Two novel proposals from the Praesidium raised debate. The first proposal gives ¼ of ministers in the Council the right of initiative. For some, this was an attack on the Commission's right of initiative, for others it was the logic consequence of abolishing the pillar structure. The second proposal creates an early warning mechanism, giving ¼ of the national parliaments the possibility of forcing the Commission to reconsider a proposal. Here, especially the number of parliaments needed to trigger the mechanism was discussed - both 1/5, 1/4 and 1/3 were suggested.
The discussion led to a broader debate on how to communitise an area that has been intergovernmental. Mr. Lamassoure (MEP) and Mr. Lequiller (France, NP) sketched out a model where a clear division of what should be communitised and what should not was drawn up. Where the Member States have the responsibility, sanctions should be used for non-compliance. In the communtized area, deadlines should be set, the court should have jurisdiction, and the normal legislative procedure should be used. That would create the needed drive for integration.
A common border police
Mr. Fischer (Germany, Gov.) argued that securing the external borders of the Union were a common responsibility. Therefore, a common border police should be set up and there should be a clear deadline for this. For Mr. Lennmarker (Sweden, NP), developing a common border police would be contrary to the whole idea of the Union. Instead, making common standards and then relying on each others' police is the better way.
For Mr. Horvat (Slovenia, NP), the solidarity clause (art. 13) is essential. There are big differences in the length of the Member States' external borders, and therefore in their cost of protecting them. As an example: Slovenia has 1% of the EU citizens but 10% of the external borders. That makes burden sharing essential. This view was supported by many other representatives from the Eastern European countries.
A common European Public Prosecutor
Mr. MacCormick (MEP), Mr. Heathcoat-Amory (UK, NP) and others argued strongly against a European Public Prosecutor (EPP) because the differences amongthe prosecutor-systems in the Member States are too big. Harmonising the system would challenge the citizens' trust in the system. It would be better to extend EUROJUST. Vice-president Amato supported this argument by saying that in Italy, they have mixed two systems, and they havea mess. Mr. Christophersen (Denmark, Gov.) said that also his government was against this, but that they could accept the present drafting of the article because it only talks about that the Union may set up and not shall set up an EPP.
Ms. van Lancker (MEP) disagreed, arguing that already the Member States in Nice accepted the setting up of an EPP - now the time has come to put that into reality. Mr. Vitorino (Commission) agreed with the need for a real European Prosecutor due to the fact that only one case had actually been tried under the present system.
Mr. Bruton (Ireland, NP), concluding on the session as chair of the working group on Justice and Home Affairs said that those, including himself that were against an EPP, should find other answers to Mr. Vitorino's objection because it showed that the present system was not working.
Asylum and immigration policy
There was a general consensus that the EU should develop a common asylum and immigration policy. Mr. Hain (UK, Gov.) argued that such an asylum policy needed an international angle, which was hard to find in the present drafting. On immigration policy, Mr. Abitbol (MEP) argued that qualified majority voting should not be used on legal immigration (art. 12 part II) because its needs differed from country to country. And Ms. Kaufmann (MEP) argued that the grounds on which the status of refugees could be granted should be extended against the backdrop of the terrible civil wars that had occurred in Europe over the last 10 years.
Presentation of new articles
Vice-president Mr. Dehaene presented the new articles that are to be disused the 24-25 April meeting. The new articles include two articles that haven't existed in the previous treaties: art. 45: Suspension of Union membership rights and art. 46:Voluntary withdrawal from the Union and "exit clause". These articles should be placed in Chapter X on Union Membership art. 43-46. Moreover, art. 33-37 in Chapter VI on the Union's democratic life and the entirePart Three named general and final provisions was presented. Amendments to those articles should be sent to the Secretariat by 11 April.
Vice-president Mr. Dehaene explained that there was no article on the Open Method of Coordination submitted today as scheduled in the road map for the Convention. This is because the Presidium, after long discussion and in opposition to several working groups' reports, found that it does not belong in the Constitution. The Constitution already explicitly states that the EU can coordinate policies in area of supporting action, art. 15. - i.e. it is possible to make soft law via the open Method of Coordination under the Constitution. If the Open Coordination Method was written into the Constitution explicitly, this could be used to weaken the European Parliament's involvement in policy making, thus the Praesidium wanted to prevent an over-use of the Open Coordination Method instead of the legislation process.
The Unions finances art 38-40
The articles 38 on the Union's resources, 39 on the budgetary and financial principles and 40 on the Union's budgetary procedures were brought together in one debate. Only 69 amendments were submitted to the Secretariat on these articles.
Mr. Christophersen (Denmark, Gov.) opened the debate by reporting from the special discussion group on the Union's Finance (which he chaired). The group has focused on art. 40: Financial Perspective. They suggested dividing up the article in two - one on the multiannual financial framework and the other on the annual budget procedures. The multiannual financial framework should no longer be an agreement among the EU institutions but be decided on as an EU law - with assent from the European Parliament, and a procedure for amendments should be included. In relation to the annual budget procedure, the Commission will be given the right of initiative. Today, the Commission can only submit working documents, and the Member States have the formal right of initiative. In the new article, the Council can change the Commissions proposal by qualified majority voting (QMV), and the Commission can also update the proposal throughout the negotiations. There should only be one reading in the Council and in the European Parliament followed by a reconciliation faze. The question is in which institution the proposal should be submitted to first.
The discussion on budgetary procedures can be divided in three main directions. The first are those who argue for status quo on the Unanimity in the Council (with more or less power to the European Parliament). The second are those who argue for a supra-QMV in Council but still predominant power to the Council. Finally, those who argued for an equal say for the two legislative branches in the EU: Council (with QMV) and European Parliament.
There were only few speakers who wanted to keep the present situation with unanimity in the Council on budget, notably governmental representatives, for example Ms. Hjelm-Wallén(Sweden, Gov.) and Mr Lobo Antunes(Portugal, Gov.), arguing that Member States have to be allowed to decide on their own money.
Mr. Hain (UK, Gov) was willing to give in on the distinction between compulsory and non-compulsory expenditures, which will make the procedure less complex - and give more influence to the European Parliament. However, only on two conditions: 1) the financial perspectives are binding for all institutions, and 2) the Council is the dominating power in setting the ceilings of expenditures. Ms. Andreani (France, Gov.) was willing to put the European Parliament on more equal footing on the conditions that 1) changes could be made in the budget according to international agreement and 2) the Common Agriculture Policy should be preserved.
On the contrary, many speakers were afraid of deadlock in an enlarged Union, including Mr. Barnier(Commission), Mr. Duff (MEP) and Mr. Brok (MEP). This group of members argued for super-qualified majority voting in the Council on the financial framework. Moreover, Ms. Maij-Weggen(MEP) suggested a double super-qualified majority system so that ¾ of the population in the EU should be represented in the vote.
Also, many speakers wanted the European Parliament to have a much greater and even equal influence as the Council, including Mr. Bury (Germany, Gov.). Mr. Chevalier (Belgium, Gov.) also emphasised that the national parliaments should ratify the EU's income and expenditures. Mr. Lennmarker (Sweden, NP) and others supported this.
All but one supported the Mulitiannual Financial Perspective to be written in to the Constitution. Only Mr. Seppänen (MEP) spoke against it.
Own resources
Many speakers were pro to giving the Union the possibility of imposing direct taxation on the Union's citizens, including Mr. Lequiller (France, NP), Ms. Hübner (Poland, Gov.), Mr. Queiró(MEP), and Mr. Horvat (Slovenia, NP). But about the same number of speakers were against it, like Mr. Krasts (Latvia, NP), Mr. Teufel (Germany, NP), Mr. Lennmarker (Sweden, NP). According to them, opening up for direct taxation would also influence the countries' socio-economic systems. Mr. Fayot (Luxembourg, NP) argued that it would be an argument too easy against the Constitution for the EU-critics, therefore he was against including the tax possibility. Mr. Seppänen (MEP) was also against, as he believed this was a way for the Commission to be more independent from the Member States, for this must not happen he said, and advocated for the budget to be decided on by the Member States.
Mr. Meyer (Germany, NP) spoke of total VAT harmonisation, and the funds should go to the EU as own resources.
Mr. Dastis (Spain, Gov.) and others believed that no matter how the Union was financed, it was important to include the principal of sufficient resources for the Union, as the Union needs resources to do its job.
It should be clear in the Constitution that the Union can have no debt, underlining Ms. Maij-Weggen (MEP) and Mr. Lennmarker (Swedish NP) among others.