Official positions of the other Institutions and Organs - Council of the Union
Messina 2nd June 1995
Brussels 5th December 1995
29. The Group considers that a key element, not only for an understanding of the reasons for reform of the Treaty but also in order to guarantee the success of the Conference, is to place the citizen at the centre of the European venture by endeavouring to meet his expectations and concerns, that is to say, to make Europe the affair of its citizens. Therefore, serving the citizens interests and perspectives for the future should be the main guiding principle for the envisaged reform.
30. The Group believes that there are European common values that the Union should protect and promote. They are the basis of our democracies, of our security and are also present in the feeling of belonging in the citizens. Essential elements are to be found in respect for fundamental rights, non-discrimination, clarification of the rights and obligations of both citizens of the Union and third-country nationals in the Union. Furthermore, the citizens' concern about greater security, employment, environment, transparency and a Union closer to them should be properly taken into account by the Union. This is all developed under this heading.
Human rights and fundamental rights
31. A basic approach in this area would, in the first place, consist in spelling out the general principle of respect for fundamental rights laid down in Article F.2 and making it more workable. This principle clearly applies "erga omnes", i.e. covers all persons within the Union whether citizens of the Union or citizens of third countries.
32. In this connection reference has been made by some to the possibility of expressly including in Article F2 an obligation of the Member States to respect human rights and fundamental freedoms and add that non-compliance would prompt the Union to take suitable action. Such an explicit statement would enhance the Union's image as a community of shared values. It is important to ensure this both for present members and for those who will accede at the next enlargement.
33. It is generally felt within the Group that during the current process of European construction, and above all in the run-up to enlargement, there is an urgent need to ensure full observance of fundamental rights, both in relations between the Union and the Member States and between States and individuals. The majority opinion within the Group is that an Article should be inserted into the Treaty providing for penalties which could go as far as suspension of the rights inherent in membership in the case of any State which commits a serious and repeated breach of fundamental human rights or basic democratic principles. Reference was even made to the possibility of expulsion.
However, most representatives were wary about agreeing to such a possibility as they thought it would be unnecessary if suspension of rights achieved the desired effects and felt there might be a danger that this would call into question the irreversibility of membership of the Union.
34. As for the possibility of complaints by individual natural persons concerning human rights, the great majority of members of the Group makes the point that there is at present an inconsistency in the fact that, while the Member States are subject to the monitoring mechanisms of the European Convention on Human Rights, the Institutions of the Union and Community law remain exempt from such control. The protection of individual human rights has hitherto been ensured solely by the Court of Justice in Luxembourg.
It is a widely held view within the Group that the Union, if it takes on legal personality, or the Community at any rate, should accede to the European Convention on Human Rights. It is recalled here that the Court of Justice has been asked for an opinion on this question.
Opposing this majority feeling, some members regard Union or Community accession to the European Convention on Human Rights as unnecessary.
35. Independently of the above, some members point out the advantages of including a Bill of Rights, either in the enacting terms or in an Annex or in the Preamble. The Group has looked at a comparative study of fundamental rights guaranteed in the Member States, which was made by the Council Secretariat and shows the technical difficulties of such an exercise despite the fact that all Member States guarantee the protection of human rights on their territory.
At European Union level, from the point of view of individual protection, it is felt by those members that only accession by the Community to the European Convention and/or inclusion of a Bill of Rights in the enacting terms would confer additional protection either by the Luxembourg and Strasbourg Courts in the first case, or only by the Luxembourg Court in the second.
It has also been noted that the implications for the Unionofthevarious proposals in relation to fundamental rights will need to be carefully studied by the Conference.
Some members do not see the usefulness of including a Charter of Fundamental Rights in the Treaty, since all Member States already guarantee such rights on their territory.
An intermediate view would accept inclusion in the preamble to the Treaty - thereby producing no direct legal effects but obtaining a high political profile - of a catalogue of the rights and obligations of the citizen compiled by bringing together all those scattered throughout the various provisions of the Treaty.
36. A large majority of the Group stresses the need to incorporate in title VIII of the EC Treaty the Social Agreement as an expression of common european values so that a proper social climate may accompany economic integration. One member will not agree with that incorporation, since he believes it will reduce competitiveness.
37. Some members of the Group referred to other forms of recognition in this area. Among such ideas was the possibility of including in the Treaty socio-economic rights and more specifically incorporating the European Social Charter, the right to employment, the right to a healthy environment. Even the idea of including in the Treaty the prohibition of the death penalty has been suggested by some members.
38. Various representatives also proposed that the citizens of third countries established in the Union be given a special status with certain rights (right of free movement and right of residence). Some members have made it conditional upon the existence of a common immigration policy.
Non-discrimination
39. With a view to the Union embodying European common values further, the Group analysed the following possibilities:
All these options received majority support within the Group subject to a more detailed assessment of their legal and economic implications by the Conference. One member, however, felt that new or increased Community references in these sensitive areas were unnecessary, and that such rights were best secured in a national context.
Citizenship of the Union
40. The Group notes that introduction into the TEU of the principle of citizenship of the Union - in addition to and not instead of national citizenship - by Article B, third indent, and its development in Articles 8 to 8e was intended as a response to the need to involve citizens more closely in the process of European construction. However, it also recognizes that this purpose was viewed differently in the various Member States; while in most of them the concept of citizenship increased the feeling of belonging to the Union, in some, by contrast, it was not readily understood that citizenship of the Union was intended to be complementary to, rather that to replace national citizenship.
41. It is logical that this variety of situations should be reflected in the Group's attitudes.
42. Some members have drawn the Group's attention to the positive effects on the feeling of belonging which would be achieved by abolishing use of the passport for the purpose of crossing its internal borders.
43. The Group also discussed the idea of a European voluntary-service "peace corps" for humanitarian actions. A sizeable majority of the representatives favour this in principle and note that it would foster a feeling of solidarity and belonging to the Union among young people. A proposal was also made by some Members that the peace-corps' tasks include assisting Member States to deal with major natural disasters in the Union (floods, fires, earthquakes, etc.). The point is, however, made that the procedure for implementing such an idea might raise difficulties which would have to be resolved but which the Group could not discuss in detail.
Public service utilities
44. A majority is in favour to consider during the IGC the reinforcement of the concept of public service utilities ("services publics d'intérêt général") as a principle supplementing market criteria. It has been pointed out that in modern economies, a number of services (such as the supply of electricity and water, postal services, education, telephone and some forms of public transport) are supplied on the basis that they must meet certain criteria such as universal availability which should be guaranteed irrespectively of the public or private nature of the supplier. Therefore it is the consumer's access that should be protected instead of the nature of the supplier. According to some members the Treaty should contain better and more complete provisions concerning the role of public services and services of general interest so as to guarantee that competition does not affect the availability, the quality and the universality of the services provided to the citizen. Others believe that the general interest would best be served by maintaining the existing provisions of the Treaty which, they believe, ensure an appropriate balance between competition policy and the needs of public service utilities.
General considerations
45. Consolidation of internal security within an area of free movement without internal frontiers is one of the principal challenges currently facing the Union. Accordingly, as requested by the Cannes European Council, the Group has given priority to this aspect. Thus:
Critical analysis of cooperation in the fields of justice and home affairs
46. In view of the above, the Group has analysed the provisions and operation of Title VI of the Treaty and, whilst recognizing that JHA cooperation has been in force for a very short time and has been a step forward compared with the previous situation, it has concluded unanimously that the magnitude of the challenges is not matched by the results achieved so far in response to them.
47. A broad majority, while admitting the influence of a lack of running-in of this new Title and of the largely inter-governmental component of the matters regulated by it, consider that neither these nor the alleged lack of political will alone explain the scant results in this area. The problem is rather that some provisions of this Title are inadequate and clearly deficient in operation, as stated in the reports by the Commission and the European Parliament on the operation of the Treaty.
However, some members referring to political difficulties in giving up national sovereignty in this area have pointed out that the lack of progress is not necessarily attributable to the intergovernmental nature of cooperation and that improvements in the present complex structure could solve many of the present problems.
48. For the great majority there is a threefold explanation for this state of affairs:
Definition of the objectives pursued would allow the specification of needed means and actions with greater accuracy. This would clarify for citizens any doubt which might currently exist on action contemplated or on the final goal sought. Furthermore, the limits of the various common interest areas are not clearly differentiated from Community powers aimed at the same objective (e.g. free movement of persons). This entails an overlapping of actions and a risk of "contamination" between "pillars". The possibilities for improvement ("passerelle") have proved ineffective. In fact, the unanimity rule and the need for national ratification make the "passerelle" very difficult to use.
Ways of achieving greater efficiency
49. For the large majority, the Conference should improve the objectives and the instruments in this area of the Treaty. Many members favour a pragmatic approach in order to identify where there is need of further use of common institutions and criteria (Commission's non-exclusive right of initiative, control by the European Parliament and the Court of Justice, use of the majority rule in some instances, without prejudice to the appropriate use of unanimity in particularly sensitive areas) and where the full use of Community competence is required:
Better cooperation on those lines requires improvements to legal instruments (conventions can be too unwieldy; in some cases, they should be replaced or allowed to enter into force once ratified by a majority) or to the role of the Institutions (generalized - but shared - initiative for the Commission, consultation of the European Parliament and judicial control by the Court of Justice).
50. Others believe that the current separation of "pillars" is essential in order to respect intergovernmental management of these matters that are so closely linked with national sovereignty. For them, consequently, the principal way of improving the operation of Title VI is to find practical improvements which reinforce cooperation.
51. The entire Group agrees on the need to reduce the number of preparatory levels, and many also urge the need to strengthen the General Secretariat of the Council in these areas.
52. The idea has been put forward that the European Union should explore ways of cooperating on more structured basis with Council of Europe in the fight against drugs.
53. The Group agrees that the national parliaments and the European Institutions should intensify their relations on justice and home affairs. It has been suggested in this connection that COSAC or an ad hoc interparliamentary commission could facilitate the exchange of parliamentary information on the subject. The idea of a High Consultative Council made up of two representatives of each of the national parliaments was also presented as having a special value for this area.
54. Various members of the Group propose the incorporation of Schengen into the European Union by means flexible arrangements (see above, chapter I.B). Others consider this to be examined in view of the Conference progress on Justice and Home Affairs.
55. As regards the arrangements for aliens, some members, as indicated in the previous section, would like to see the Union introduce a common status for legally resident third-country nationals, whilst others point out that this would require the precondition of an overall common immigration policy.
56. The Group stresses the urgent need to meet the challenge of job creation, in response to a pressing demand from Europe's citizens.
57. Increased competitiveness - which is encouraged by Europe's integration - is the key to job creation. However it must be acknowledged that, on the one hand, this takes place above all through enterprises located at local level; on the other hand, States continue to be the bodies mainly responsible for ensuring economic and social cohesion and helping people living on the fringe of society. This being so, the Union cannot ignore the economic and social effects of national policies. Although the Union sees no miraculous cure for unemployment, it can coordinate and mobilize efforts in a common direction. The Group therefore considers that it must continue to follow the course set out in the White Paper on Competitiveness and in the process for examining the employment problems which was initiated after the Essen European Council and which has already been the main item on the agenda of the latest European Council meetings.
It is also agreed that employment is not nowadays a sectoral policy but an objective which must be strengthened and also the global result of the Community's policies. In this context, Article 2 of the TEC states that the task of the single market, EMU and all policies is to promote a high level of employment and of social protection. There are currently several policies which may make a particular contribution to that endeavour, in particular policy on competition, the environment, structural funds, education and research.
It is therefore considered appropriate that the Commission, ECOFIN and the Social Affairs Council should continue to follow the recommendation that they devote special attention to this subject. Their monitoring, coordinating and commonly reporting work should result in a framework for common strategies and strengthening of the Union's economic and social features, reflected in the broad guidelines of economic policies as referred to in Article 103 of the TEC.
Some members suggest that competitiveness should be mentioned in Article B of the Treaty.
58. A large majority of the Group propose that the objective of job creation be strengthened in the legal bases for the above mentioned policies. In any case, many members consider that the Community should carry out an efficiency audit of its proposals and of the implementation of its policies to determine their job-creating capacity in accordance with Article 2.
For some members, job creation should be included among the tasks refered to in Article 3 of the Treaty.
59. Several members go further and support inclusion in the TEU of a chapter on employment policy. In this view, according to some a Committee on Employment with the same rank as the Monetary Committee should be created to monitor the effect of Union policies and funds with regard to the impact on employment. This would imply the development of the Union's economic and social integration in full respect to the EMU provisions.
60. From an opposite view, some members do not consider that introducing new employment policy provisions into the Treaty is either necessary or that it would help to improve competitiveness or job creation; they underline that job creation is the result of greater competitiveness, flexibility of the economy and reducing bureaucratic burdens. They further believe that employment policy is a matter for Member States to decide in the light of their individual circumstances. In this view, at the Union's level, job creation should be a matter for practical improvements of the ways and means to coordinate national policies.
61. With regard to the environment, the Group stresses the pressure being brought by public opinion for greater respect for the limits imposed by the environment and sustainable development.
62. Some members have pointed to the need to state more clearly that environment and sustainable development are priority objectives of the Union. Hence, environmental considerations should be integrated with other sectoral policies, e.g. agriculture in terms of environmental conservation. The Group thinks priority should be given in the Conference to taking account of the environmental dimension in Community policies.
63. A number of possible proposals have been made within the Group in this context: incorporation in the Treaty of the agreements reached at the Rio Conference so that Community policies are geared to a sustainable development; possible inclusion of the environment in Article 36 of the Treaty (restrictions on imports), Article 39 (objectives of the common agricultural policy), Article 74 (transport), Article 129b and the following Articles (trans-European networks), and consideration of extending the possibilities offered to the Member States by Article 100a(4) for laying down higher national standards; more involvement of the EP through co-decisions on these matters; inclusion in each proposal of an environmental impact assessment.
64. From another point of view, it has been pointed out that a large part of environmental legislation in each Member State is of Community origin and that in the first place the considerable body of legislation already in force should be properly implemented. Means to strengthen implementation and enforcement should be considered, without necessarily reforming the Treaty. In particular, the Conference should examine how to improve the capacity of the Union to act more efficiently and to identify whenever that action should remain within the Member States.
65. A majority of members is prepared to consider extensions of qualified majority voting system in this area. However, some members pointed to the limits which application of the principle of sufficient means should impose if the exceptions to qualified majority voting in this area were to be abandoned. Stress was also laid on the quasi-constitutional nature of such exceptions in that they affect areas highly sensitive for the sovereignty of the Member States or have major financial implications at national level.
66. In connection with the environmental concern, one member suggested the idea of strengthening the nuclear safety provisions of the Euratom Treaty. One member suggested the inclusion in the Treaty of a reference to the gradual phasing out of the use of nuclear energy. However, It was noted by others that nuclear energy actually provided up to 75% of some member States' energy supply and that it is seen by many of their citizens as the cleanest way of producing energy.
67. The Group agrees on the need to make Union affairs more accessible and comprehensible to the general public. The concept of "transparency" serves that purpose and covers different aspects (many of which do not require any amendment to the Treaties):
68. The Group also feels in general that it is necessary to simplify as far as possible the actual text of the Treaty so that its contents are clearer, easier to understand and therefore accessible to citizens interested in examining and studying it. To this end, the Secretary General of the Council has upon request of the Group presented a paper on possible ways of simplifying and clarifying the text of the Treaty without altering its contents.
An initial examination of this interesting report has led the Group to the following two conclusions:
Some members insist that if there is to be that working party, its mandate should be decided as soon as possible.
69. The Group stresses the importance of correct application of the principle of subsidiarity and proportionality enshrined in Article 3b of the Treaty and confirmed by an Interinstitutional Agreement on its implementation.
Subsidiarity imposes not only a legal but also a behavioural obligation.
Correct application of this principle must avoid two misuses:that of subsidiarity remaining an abstract principle without practical effect and that of it becoming in practice an instrument for systematically limiting the powers of the Union. It is felt that the principle of subsidiarity should serve as a guide to the proper exercise of the powers shared between the Community and the Member States and avoid their misuse either to excess or the contrary. Subsidiarity cannot be used as an excuse for lack of solidarity or for the renationalization of common policies. Nor can it be an alibi for systematically increasing the Community's tasks. For these reasons, most members of the Group do not feel it advisable to amend Article 3b of the Treaty but think it necessary to ensure that it is properly exercised in practice.
70. It is also thought by some members that there is a need for more effective control over application of this principle by those Institutions responsible for watching over the Treaties: the Commission by "ex-ante" control and the Court of Justice by "ex-post" control.
In this sense various representatives have insisted that on the basis of the Edinburgh Declaration a Protocol on subsidiarity should be incorporated to the Treaty.
Also, one member proposes stepping up control on subsidiarity through a new legal procedure for the national parliaments before the Court. Others favour further political supervision. In this context, it has been suggested to increase the "ex-ante" control through the consultation of a High-Level Advisory Committee consisting of two members of each national parliament, which would report on whether subsidiarity is being correctly applied. Furthermore, the idea was recalled that when the Council receives Commission proposals and before it examines the substance, it should first decide whether the proposal correctly applies subsidiarity, but, the majority of members consider that the Council's decision-taking mechanism should not differ from that applied to the substance of the proposal.
One member has suggested introducing into the Treaty a provision limiting any regulatory excesses and providing for more systematic use of clauses which expressly limit Community powers, as is at present the case with education, health and cultural affairs.
71. A very large majority within the Group is opposed to the request made by the Committee of the Regions in its report that it be authorized to bring proceedings before the Court of Justice for incorrect application of the principle of subsidiarity. They believe that it is not a task for the Committee of Regions to interpret the application of the principle of subsidiarity to the powers shared between the Union and the States.
72. Various members have put forward the need to strengthen the principle of sufficient means in the Treaty as a way of moderating the exercise of the Community's powers. This principle does not pursue Community financing for every Community decision which creates costs for one of its Members but should imply "ex-ante" control of proposals so as to prevent the Union from deciding intolerable financial obligations against the will of those States which would be obliged to fund them from their national budgets. The principle of sufficient means looks for consistency between the ambitions of the Union's proposal and the constraints on the Member State provider of funds.
73. Some members have stressed that correct application of subsidiarity and appropriate recognition of the principle of sufficient means could facilitate the transition from unanimity to qualified majority in areas such as education, environment or social policy.
© Enlargement