THE RESULTS OF THE EUROPEAN CONVENTION A CRITICAL APPROACH

Átírás

1 2 Budapesti Gazdasági Főiskola KÜLKERESKEDELMI FŐISKOLAI KAR Külgazdasági Szak Nappali tagozat Európai Üzleti Tanulmányok szakirány THE RESULTS OF THE EUROPEAN CONVENTION A CRITICAL APPROACH

2 3 Budapest, 2003 Készítette: Félegyházi Csaba

3 4 Table of Contents 1. Introduction Precedents to the European Convention The reforms of the 90s and the failures of the Amsterdam Treaty The Treaty of Nice, and the successful reforms The problems of the institutional system before Nice The successes of the Treaty of Nice reforms in the institutional system Conclusions and Nice leftovers Beyond Nice the provisions of the Laeken Declaration The setting-up of the European Convention Conclusions A critical analysis of the results of the working groups Introduction The working group on subsidiarity The working group on the Charter of Fundamental Rights The working group on legal personality The working group on the role of national parliaments The working group on complementary competences The working group on economic governance The working group on external action The working group on defence The working group on simplification of legal instruments The working group on area of freedom, security and justice...42

4 The working group on social Europe Conclusions Feedback on the results of the Convention A short summary of the draft Constitutional Treaty with some critical reflections Criticisms by EU players Positions of Member States on the results of the Convention The four big EU Member States The Benelux countries Four highly developed, but small Member States Four less developed Member States The priorities and criticisms of some accession countries Opinions from the civil sector NGOs and other players The show must go on the final decisions left for the IGC Final Conclusions..71 Annexes..73 Bibliography..84

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6 7 1, Introduction The draft Constitutional Treaty of the European Union is said to bring one of the most significant reforms of the modern history of European integration. This is clearly shown by the huge work the Convention has done. The forum for the discussion of questions related to the draft Constitutional Treaty created not only a debate among its members, but between European political and non-political institutions, political scientists and research institutions. This debate lasted for more than a year, which foreshadows the complexity and the hardships of drafting the Constitutional Treaty. Just to show you, how the work of the convention was perceived by its President, Valéry Giscard d Estaing, I would like to recall some of his thoughts from his introductory and final speeches before the Convention. In his introductory speech 1 Valéry Giscard d Estaing defined the Convention as a body who can either fail to provide a system, which is both effective and clear to the public, or develop a concept, which can bring unity to the continent and respect to its diversity. Giscard d Estaing saw the work of the Convention rather black or white. In his interpretation the European integration can only face the challenges of the 21 st century if a new constitutional treaty is successfully drafted (by the Convention) and accepted (at the 2004 Intergovernmental Conference). His concept is even more underlined by his final speech 2 at the Thessaloniki Council, he described the document as the milestone, which represents an important step forward in the construction of Europe and will enable the enlarged Europe of the 21 st century to operate on solid foundations. Everybody speaks about the significance and the possible success of the future Constitutional Treaty, but looking at its development it is clear that no consensus could be brought which really satisfies the interest of the people of Europe. In my dissertation I am going to investigate the reforms of the draft Constitutional Treaty and the process of its development from a critical point of view. In this paper I would like to look at the work of the Convention and the draft Constitutional Treaty from a new 1 Introductory speech by President Valéry Giscard D Estaing to the Convention on the future of Europe, 28/02/2002 source: 2 Oral report presented by Valéry Giscard D Estaing at the Thessaloniki council, 20/06/2003, source:

7 8 approach, in which I would reveal the main deficiencies of the reforms of the draft Constitutional Treaty. I would like to support my arguments by summarising many of the criticisms and contributions (opinions and amendments) added to each of the articles of the draft Constitutional Treaty. Furthermore, I will show what the results of the debate on the future of Europe are that were criticised the most. In the first section I will investigate how the European integration came to the idea of making a constitution. This will be presented through the research of the preceding reforms, their success or failure. During my research I would like to put emphasis on the question, whether the European Union needs a new reform? In the second part I would like to critically analyse the results of each working group. After the short presentation of their results, I will investigate whether the results of the working groups really reflect the interest of the EU and the public. An important aspect here is again to reveal the deficiencies. In the third section I am going to have a look at all the criticisms, opinions and comments that give a feedback on the draft Constitutional Treaty. From all these opinions we can learn a lot about the weaknesses of this treaty. In this part I will look at the most important questions (articles) of the draft Constitutional Treaty. This research will be done by contrasting criticisms. I will contrast the position of the nations, (existing an accession countries) the EU institutions, NGOs, citizens and other thinkers and add my own position. My aim is to evaluate the feedback on the draft Treaty, revealing the different interests at the EU, Member State and social level. At the end of this chapter I will give an overview of the discussions at the Intergovernmental Conference, thus investigating the present and the possible future of the Draft Treaty establishing a Constitution for Europe. It is clear now that my dissertation focuses on the most important questions: What interests do the reforms of the draft Constitutional Treaty serve? In what extent are they beneficial for the EU as a whole, for the Member States, and finally for us, people? Among these, I will pay special attention to the interest of citizens.

8 9 2, Precedents to the European Convention 2.1 The reforms of the 90s and the failures of the Amsterdam Treaty The creation of the European Union was set as an aim as early as 1957 in the preamble of the Rome Treaty. Therefore it is very interesting that the Union itself was only established in 1992 with the signing of the Maastricht Treaty. Although the Luxemburg and Copenhagen Conferences of 1970 and 1973 opened the series of cooperative discussions among Community member states, the deepening of the integration was very much hindered by the scepticism of the 1970s. It is understandable since the economic crises of the 1970s slowed down economic integration. Due to the oil crisis of , for example, some trade quotas were newly introduced, and voluntary export restrictions reappeared. Even the abolition of national subventions lasted as long as The Single European Act 3 meant a significant change in the process of integration. The paper aimed the creation of a single market until 31 st December The main achievements of the Single European Act were the clear definition of policy aims through which the physical (border guards), monetary (taxation policies, budgetary issues) and technical (national standards) barriers to a single market could be abolished. The creation of a single European market meant a huge increase in the Community acquis, which made the 3 Handbook of the European Union, Z. Horvath p

9 10 accession more difficult to new entrants. With these reforms the Single European Act was able to provide a basis for the creation of the European Union. The Maastricht Treaty of 1992 created a new economic and political system and political structure: the European Union 4. The reform achieved results mainly on the area of economic integration. Agreement in the questions concerning economic integration proved to be much easier than in the area of political integration. The economic integration was well prepared by the Single European Act, so an inevitable task was to create a monetary union. The treaty set as an aim to establish the free movement of goods, services, labour and capital. Concerning the issues of political integration, the treaty established the two intergovernmental pillars 5, the Common Foreign and Security Policy and the Justice and Home affairs. The establishment of these two policies was said to be a milestone in the deepening of the integration. However we have to notice here, that these two policies remained intergovernmental, so practically they meant a stronger cooperation between member states, but no community level decision-making. Finally, we can say that the Maastricht Treaty was successful in establishing an economic community and prospected the establishment of a monetary union 6. It widened the integration to new areas like transport, environment, R+D or culture, but some key policies 7 still remained at an intergovernmental level. The integration in economic and monetary terms seemed to be successfully reformed, but further integration of other policies were needed, to achieve a federalist union 8. In the mid 90s the European Union was not able to make further steps towards a deeper integration. In many of the countries, the people resisted the idea of creating a common currency (therefore, as I mentioned, some Member States were given the opt-out), so the ratification of the Maastricht Treaty was not without barriers. The introduction of the 4 We have to mention here, that the name European Union does not mean that the EU has a legal entity, therefore we regard it as a politically created name. The concept of the EU as a legal entity appears now in the draft Constitutional Treaty. Practically the three Communities remained, only their name changed 5 In the 3 pillar system the 1 st pillar is the EC, which is a policy at community level 6 Although it couldn t have established a monetary union if no exclusion possibility had been given to UK, Denmark and Sweden 7 E.g. defence policy 8 The European integration has always been making small steps towards a federalist union. The waves of reforms resulted in the closer integration of Member States by raising some of the national policies to community level. There are of course countries, which are keen to keep as much policies at national level as possible. Characteristic eurosceptic countries are the UK, Denmark, Sweden (rejection of monetary Union) and some of the smaller countries (Spain, Ireland, Portugal) since they are afraid that federalism means a loss of their power in the European decision-making. The countries that are most devoted to a federalist Europe are mainly Germany and the Benelux states.

10 11 monetary system was bound to certain criteria. Due to the recession of the mi 90s, Member States found it very hard to fulfil the Maastricht criteria, therefore the voices of scepticism became stronger within the Union. Reforms were needed though, because the world economic and political trend created the following challenges for the European Union: - the globalisation process created even more competitive international markets, on which the countries of the European Union didn t have enough weight separately to influence world trade processes - the accession of new members was in vision, by the mid 90s some CEE countries already applied for membership 9 These two challenges are in strong relation, since the enlargement of the European Union surely results in the increase of the Union s economic and political weight. Therefore the latter challenge is the key issue during the reforms after the mid 90s. What changes did the European Union need to be prepared for the accession of 10 new countries? First of all it needs a modified institutional system, a new budgetary planning and a clear definition of the role of national parliaments and competences in the European Union. The European policy makers believed at this point that the European Union - which now faced more duties and challenges than ever before - won t be able to function without the reform of the decision-making system. The increasing number of Member States seemed to make it very hard to reach a consensus in key questions. Below, there is a summary of the most important problems of the Maastricht Treaty that made the call of the next Intergovernmental Conference inevitable 10 : - In the 2 nd and 3 rd pillar, the Treaty did not create the sufficient initiative mechanisms needed for the creation of policies, furthermore the integration in these policies needed to be strengthened. - The 1 st pillar struggled with some practical questions, like the reform of the Common Agricultural policy 9 Hungary and Poland in 1994, the Baltic states and Slovakia in 1995 and Slovenia and the Czech Republic in 1996

11 12 - A budgetary revision was needed to be able to implement the planned reforms - The Union had to be brought closer to the people - The institutional and decision-making system had to be reformed For combating all these challenges, the delegates of Member Stats tried to reach a decision on the 6 th Intergovernmental Conference that started in Turin in March The talks lasted as long as June 1997, when finally the Member States signed the Amsterdam Treaty. The Amsterdam Treaty can be evaluated as one of the least effective reforms of the European integration. Many of the questions and problems of institutional reform and enlargement were postponed or remained unsolved. Only few results 11 can be mentioned, such as changes in the CFSP. Its greatest achievement was the implementation of qualified majority voting in the General Affairs Council when adopting common positions, common strategies and joint actions in the CFSP. Furthermore it introduced the possibility of constructive abstention, which means a nation shall not join each action in the CFSP on a mandatory basis, if it is not against the action it can simply deny participation, without blocking its implementation. Another achievement in the CFSP is the creation of the position of the High Representative. It does not mean the appointment of a new person, but the extension of the role of the Secretary- General of the European Council. The Secretary-General of the Council, High Representative for the common foreign and security policy, assists the Council in matters coming within the scope of the common foreign and security policy, in particular through contributing to the formulation, preparation and implementation of policy decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties 12. This change extended the work of the formerly bureaucratic Secretary-General, but it meant multiple tasks as well, and therefore the question can be raised whether a single position would have resulted in a more effective international representation. Other achievements were on the area of Justice and Home Affairs 13, but the real key issue, the reform of the decision-making remained almost untouched. Some reforms 10 A comparison of the Intergovernmental Conferences : Agnes Lux The Amsterdam Treaty (article J) : The Amsterdam Treaty Article J16 13 Bringing border guard, immigration and refugee policies on a community level

12 13 were made though, such as the slight extension of QMV and the extension of European Parliament s right of initiative 14. The Amsterdam Treaty also attempted to make the Treaties of the European integration more comprehensible to the public by re-numbering its articles. The Amsterdam Treaty should have solved three institutional questions 15 in order to create the sufficient system of decision-making for the enlargement. - the significant extension of qualified majority voting (QMV) in the European Council 16 - re-weighting the number of votes in the Council - defining the composition and size of the European Commission Basically the Amsterdam Treaty failed to prepare the institutional system of the European Union for the enlargement process. As a summary for this period we can say, that the 90s brought significant changes in the development of the European Union. The Maastricht Treaty was successful in creating the economic union and prospecting the monetary union, but the enlargement process brought further challenges. The accession of 12 new member states created the need for the reform of the whole EU institutional system (which was initially planned for 6 Member States). The EU wanted to successfully initiate these reforms at the 6 th Intergovernmental Conference, but the most important questions remained unsolved. The challenges of enlargement had to be solved by further reforms. 2.2 The Treaty of Nice, and the successful reforms The problems of the institutional system before Nice One of the problems related to the enlargement was the problem of inefficient system of voting within the European Council. With 27 countries the Council would be paralysed to 14 With the extension of the co-decision process 15 Handbook of the European Union, Z. Horvath p. 47.

13 14 function because of the long time needed to reach a consensus. Analysts were afraid, that the content of political decisions would be also less meaningful after the negotiation process between the Member States. An alternative solution could be the extension of QMV in the Council. But this solution raised further questions. For a QMV that is democratic and represents the will of the majority of Europeans based on population size, the votes had to be re-weighted. The weights of votes did not truly reflect the population difference between member states 17. Theoretically, with the enlargement it could happen that based on the population of Member States a minority representation would accept legislations within the Council. On the other hand, with the introduction of QMV the small nations feared that they would lose their power in European decision-making. The other two institutional bodies of the EU had to be reformed as well. The European Commission had 20 members, with 2-2 representatives from greater and 1-1 from smaller nations. With the enlargement the system would have lost one of its attributes: either it would exceed the size of 20 or not all the Member States would be represented. The Commission is already characterised by criticisms as ineffective, because the tasks are not equally weighted among the 20 commissioners. Two arguments can be mentioned in this question. The expansion of the size of the Commission would result in the decrease of its effectiveness. In the rotation system not all nations would be represented, which is protested by smaller nations. (And accession countries) Basically there were three main questions left over from Amsterdam concerning the European Commission: - the composition and size of the Commission - the internal reorganisation of the Commission - the role of the President of the Commission The Treaty of Nice also had the task to increase the number of seats in the European Parliament for 27 nations. The Amsterdam Treaty set 700 as the total number of representatives, and the 7 th IGC had the duty to divide the seats in the Parliament among the 27 Member States. 16 Hereafter: the Council 17 E.g. Portugal had a population of about 10 million with 5 votes, Germany 80 million with 10 votes, the ratios of 1/2 and 1/8 are not harmonised

14 The successes of the Treaty of Nice reforms in the institutional system 18 The Treaty of Nice brought several reforms reshaping the institutional bodies of the EU. It fulfilled a great amount of duties needed for the preparation of the enlargement. The duties mentioned above are not directly related to the enlargement, and the Treaty of Nice didn t influence the outcome of the enlargement process. These reforms had to be made to avoid institutional problems in a larger Europe. THE EUROPEAN COMMISSION One of these duties was to solve the three problems related to the European Commission mentioned above. The Treaty of Nice finally decided on the idea of one commissioner for each Member State, with the remark that the rotation system should be developed in the future. This means, that if the number of Member States exceeds 27, the Council will have to introduce the system of rotation. Thus the number of Commissioners shall be less than 27. The Treaty of Nice also strengthened the powers of the President. The President gained the right to define the organisation of the Commission. The President received the power to divide the different tasks among the commissioners and determine their competences. According to the reforms he/she can appoint the vice-presidents with the approval of the Commission or can propose the dismissal of Commission members. The last significant success of the Treaty in this area was the application of QMV in the Council when appointing the President of the Commission. This means that the nations will lose their right of veto. QMV will be applied also to the appointment of Commission members 19. THE COUNCIL OF THE EU 18 Treaty of Nice europa.eu.int/comm/nice_treaty/index_en.htm, The important provisions of the Treaty of Nice, L.Sinka Z. Horvath, Európai Tükör, 2001/2-3, 19 QMV in the Council + the approval of the President of the Commission and the European Parliament is needed

15 16 We already saw some evidences for the extension of QMV in the Council in the previous paragraph. Besides the extension of QMV the re-weighting of votes was needed, which proved to be the most difficult question of the 7 th IGC due to the clash of national interests. The point of the new system (starting on 1. January 2005.) is that it re-weights the number of votes to better reflect the population differences among Member States. It means a broadening of votes. (see Annex 1). from the scale 2-10 to the scale of 3-29 (in an EU with 27 members). This extends the gap between smaller and large members, because of their population differences. The new system is surely in favour of large countries 20, which was (and is) resisted by many smaller countries. The total number of votes increases from 82 to 169 in the EU-15 and to 345 in the EU-27 to enable the flexibility of division of votes. Furthermore, in the decisions where QMV is applied, and the proposal is initiated by the Commission, the support of more than a half of the Member States is enough to accept the decision. Otherwise a 2/3 majority is needed. The Treaty of Nice also created the possibility for nations to check whether QMV reaches a 62% representation of the EU population. If not, the council cannot adopt the legislation or bring a decision 21. The new voting system of the Council seems to be successful in creating the framework for the institutional system of the EU-27, although the voting system became complicated which is contrary to the principles laid down in the Amsterdam Treaty (the transparency of legislation). There were some disputes about the maximum percentage of votes for QMV. For example the declaration in the Treaty of Nice and the accession treaties differ in the number of vote for QMV. The first one defines a number of 255 from 345, the latter 258/345. The Treaty of Nice prospected the increase of QMV limit to a maximum of 74.3%. The expansion of this limit is not welcome by many federalist politicians, because they think it strengthens the nations bargaining power. This was just a short overview of the changes, but the system created by the Treaty of Nice is much more complicated, and extends the scope of this dissertation. The reforms prepare the decision-making system in the Council for an enlarged EU. However there is uncertainty about the time of the 2 nd round of enlargement. The weight of votes is not defined 20 Namely: Germany, UK, France, Italy, Spain, Poland 21 This is and advantage for Germany, because she has 17% of the EU population. Together with two other large EU countries, she is available to block decisions

16 17 for the case, if the 1 st round of enlargement occurs before (which is the case now) Another question is whether the extension of QMV voting limit and the conditions of blocking really help or hinder the decision-making. These surely create a possibility for nations to intervene in the decision-making, but in my opinion the creation of the new voting system still strengthens the effectiveness of the decision-making of the Council. This step wasn t as revolutionary as expected, but I think small steps are needed to reach a result. (and this is true for the institutional reforms as well). EUROPEAN PARLIAMENT The size of the European Parliament had to be reshaped to be convenient for the decision-making with 27 Member States. For the preparation of a larger EU the seats had to be re-distributed so, that the total number of seats will have only a small increase. Therefore the countries had to surrender some of their existing seats for the newcomers. The division of seats within the Parliament was a tool to compensate those countries, which weren t satisfied when the Council votes were decided. Germany (as the only country) could therefore retain her 99 seats in the Parliament. Belgium and Portugal, who protested against the great number of Council votes for the Netherlands and Spain, received 2-2 extra seats as compensation. With these negotiations finally the size of the Parliament for the EU-27 exceeded the initial 700 defined in the Amsterdam Treaty, and ended up in 732 (see Annex 2). The new system could be applied for the period starting after the enlargement (so from 2009). For the transition period of the number of representatives will be equal for the existing members with those defined in the Treaty of Nice, for the new members with the number defined in the accession treaties. For this period it could happen that the number of representatives won t reach 732. In this case the Council decides upon the corrections. The main problem of this system could be that it defines the size of the parliament for 27 countries, but it is unpredictable when the 2 nd round of the enlargement process will be ended. For the preceding periods the number of seats in the Parliament is not fixed in the Treaty of Nice, therefore it is going to vary. This surely confuses the transparency of the parliamentary decision-making. But in general, the Treaty of Nice solved the main institutional questions related to the Parliament.

17 18 OTHER ACHIEVMENTS IN INSTITUTIONAL QUESTIONS Besides the reforms on the three key institutional bodies, the Treaty of Nice achieved significant changes in other areas of decision-making. Several changes were made in the structure of the Court of Justice. The Treaty of Nice modified the number of jurors in the Court on a 1 juror from 1 nation basis. The Treaty of Nice extended the competences of the Court of Auditors and created the Grand Chamber for the most important cases. It also established the High Courts. The treaty of Nice re-shaped the number of delegates in the Economic and Social Committee and the Committee of Regions. It maximised their number in 350 and divided the seats for 27 nations (see Annexes 3/4) REFORMS ON DECISION-MAKING The Treaty of Nice has extended QMV onto 30 areas 22 of which 23 came into effect immediately with the ratification of the Treaty. In some articles the Treaty of Nice applies QMV for certain paragraphs, and not for the article as whole. In justice and home affairs questions of the first pillar the Treaty of Nice re-strengthened the extension of QMV for the policies of immigration and judicial cooperation. Many nations attempted to postpone the starting date of the application of the QMV, but on the area of the cohesion policy, for example the triumvirate of Spain, Greece and Portugal could reach that QMV will be applied only from the budgetary period starting in The extension of QMV failed on the areas of social policy, taxation policy and was semi-successful in trade policies. We can say, that the extension of QMV happened on many areas, however its general application for most of the policies failed. The federalists wanted to abolish the status quo. The Treaty of Nice couldn t provide a solution to fulfil their 22 Based on the number of articles covered by the modification

18 19 expectations, but came significantly close to it. Mainly the decisions on extension depended on the possibility of consensus. The extension of co-decision failed to the great disappointment of the European Parliament. Co-decision was introduced to only 7 new areas (e.g. agriculture and trade policies). A significant reform was the reform on closer cooperation. The concept meant that the nations more integrated could start cooperation on a certain policy area. The idea has been resisted by several Member States, because they were afraid that the faster integration of a group within the EU could lead to a huge integration gap. Previously to the Treaty of Nice the possibility of such cooperation was hindered by strict rules 23 The Treaty of Nice: - abolished unanimity when deciding on closer cooperation - defined the number of nations (8) that can start such a cooperation - defined the conditions of starting a cooperation - decided on the extension the concept of closer cooperation to the CFSP Conclusions and Nice leftovers In general, we can say, that the Treaty of Nice could basically answer the challenges provided by the enlargement of the European Union. Most of the questions on institutional reforms were solved and practically the organisation of the EU became technically prepared for the enlargement. For the solution of questions not answered in the Treaty of Nice a new IGC was planned in The questions that need to be discussed at the 2004 IGC are. - the competences of the nations and the EU - the status of the Charter of Fundamental Rights - the simplification of the Treaties - the role of national parliaments 23 E.g. more than half of the Member States needed for a cooperation, unanimity when voting on a cooperation 24 The Treaty of Nice declared, that no military or defence policies should be taken under the scope of closer cooperation

19 20 Practically the discussion of these questions won t hinder the 2004 enlargement of the EU. The EU is set for the 1 st round of enlargement. This raises the question why the creation of a new constitution is so urgent. In this section I put emphasis on the achievements of the Treaty of Nice to make the reader see, that there is a need for a constitution, but not primarily for solving the challenges of the enlargement. These questions are well covered by the Treaty of Nice, so the creation of the Constitutional Treaty has other purposes. 2.3 Beyond Nice the provisions of the Laeken Declaration The debates on the 7 th Intergovernmental Conference showed that the discussions about the reforms of the European Union could end up in a very fierce political fight between the Member States. Many of the politicians were surprised by what happened at the IGC and they called for a deeper and wider debate about the future development of the European Union. They stated that the Swedish and Belgian Presidencies, in cooperation with the Commission and involving the European Parliament, will encourage wide-ranging discussions with all interested parties; representatives of national Parliaments and all those reflecting public opinion; political, economic and university circles, representatives of civil society, etc. 25 This meant a more open discussion of the questions on the future of the European Union. According to this new concept, the final decision is still made by the IGC of 2004, but the preceding discussion will be Europe-wide. This is a very democratic approach and in my opinion a step to bring the European Union closer to the people. Three steps of debate were planned by the Declaration: - 1 st period of discussion initiated by the EU and ended by the Laeken summit - 2 nd period of discussion, the preparation of the 8 th IGC - 3 rd period of discussion, the 8 th IGC The Laeken summit of December 2001 had a key role in setting up the organisational framework of the IGC, and the preparation discussions. The leading politicians of the 25 Declaration on the future of the Union to be included in the final act of the Conference,

20 21 European Union made their final statement in the Laeken Declaration 26. They decided on the basic questions on the future of the EU. The Declaration only raised the questions, but didn t draw alternatives to answer them. The Declaration defines 3 main areas in which the European Union shall move forward 27 : - making the EU more democratic - conducting the values of the EU on a global level - satisfying the needs of the citizens The topics of discussions proposed by the Laeken Declaration continued on the basis of the Declaration of the Nice Treaty. The four topics proposed by the Laeken Declaration are: 1, the division of competences within the EU 2, the simplification of legal instruments 3, the increase of effectiveness, democracy and transparency in the EU 4, the preparation of a Constitution for the European people All these questions are closely interrelated. Just to mention one example, the simplification of the Treaties 28, thus the simplification of legal instruments result in a greater transparency of the operation of the EU. In our discussion we should pay special attention to the fourth point. The other three questions raise many issues that are dealt with in a constitution. Many of these points are included in national constitutions as well, for example we can find evidences, such as the definition of legal instruments in the 3 rd part of the Hungarian Constitution 29. However some Member States protested against the nomenclature constitution since they believe a constitution can exist only on the national level. The question is interesting, whether the planned European Constitution carries the characteristics of a constitution or not. 26 The Laeken Declaration : And these points are key aspects of my research of the draft Constitutional Treaty 28 The Treaties = the Treaty of Rome, the Maastricht Treaty, the Amsterdam Treaty and the Treaty of Nice laying down the legal basis of the existence and operation of the European integration 29 Constitution of the Republic of Hungary :

21 22 However, my dissertation focuses on the provisions, so a constitutional law analysis would go beyond the scope of this dissertation. The Laeken Declaration said the focus should be on the simplification of existing treaties. The legal basis provided by the Treaties seemed to be too complicated 30, thus not comprehensible to the European citizen. The other reason mentioned by the Laeken Declaration was the inefficiency of the Treaties. The plan for developing a constitution raised several questions among the Members of the European Council. Some examples are mentioned below: - Does the European Union need a constitution or just a Treaty summarising and simplifying the existing treaties? - What are the aims of the changes in such a constitution? - Is it necessary to include the charter of Fundamental Rights in the European constitution? Many of the eurosceptics feared, that a constitution would be a huge push to the direction of federalism. Indeed the idea of developing a constitution would give national characteristics to an international community. 2.4 The setting-up of the European Convention The Laeken Declaration aimed to set up a forum for the debates on the questions concerning the future of the European Union. This was the second time 31 the European Union decided upon using this form of debate. The European Convention became the greatest discussion forum in the history of European integration. According to the Declaration the Convention consisted of: - a President (Valéry Giscard D Estaing) - two vice-presidents (Giuliano Amato and Jean-Luc Dehaene), - 1 representative from each of the governments of the 15 Member States, 30 As a result of repeated amendments 31 When finalising the Maastrcht Treaty the representatives of the Council, the European Parliament and the national parliaments held a 1-week-long discussion. This was the first time in the EU (EC at that time) that debates ran in a convention.

22 23-2 representatives from each national parliament of the 15 Member States, - 16 representatives from the European Parliament, - 2 delegates of the European Commission - 1 government and 2 parliament representatives from all of the 13 accession countries This gives a number of 105, but this is even larger with the deputy representatives. Other organisations could delegate observers. Three members of the Economic and Social Committee, 6 members of the Committee of Regions, 3 members of the social partners and the European Ombudsman could be present at the sessions of the Convention. The Praesidium, which was the primary initiative body of the discussions, consisted of 13 members, among them the President and the vice-presidents. The operation of the Convention started on 1. March and lasted until the 10. July At the beginning of the debates the Convention decided on its agenda. The Convention's proceedings 32 comprised three phases: 1, A listening phase: identification of the expectations and needs of the Member States, their governments and parliaments and the needs of the whole society. This phase lasted until June , A deliberating phase: comparison of the various opinions put forward and assessment of their implications and consequences. The second phase lasted until autumn , A proposing phase: synthesis and drafting of proposals. This was the longest phase. At the end of the third phase the European Convention presented the final draft Constitutional Treaty to the European Council in Thessaloniki. I don t want to waste much time on the structure and working phases of the European Convention. This has already been presented by many documents and dissertations in the past. What is interesting from the critical aspect is to have a look at the results of the working groups of the Convention. I would like to put greater emphasis on what has been done instead of answering the question 32

23 24 how has it been done. The draft Constitutional Treaty was the final result of the European Convention. In the latter parts of this dissertation I would like to focus on the draft Constitutional Treaty and its preparation process. 2.5 Conclusions In this first section I had the intention to show and evaluate the reforms of beginning from the 1990s. The purpose for this research was to show the reader the results and deficiencies of previous reforms to answer the question whether a constitution is needed or not. Of course we could find evidence for and against the need for a constitutional treaty. Below I summarised both groups of arguments that were revealed to me during my research: ARGUMENTS FOR THE INTRODUCTION OF THE REFORMS CONTAINED IN THE DRAFT CONSTITUTIONAL TREATY - Europe needs a new direction that points beyond a simple institutional transformation - The Charter of Fundamental Rights should be incorporated in the basic treaty of the European Union - The previous reforms failed to keep to the concept of transparency - The previous reforms could not bring the European Union closer to its citizens - The simplification of existing treaties is inevitable - A constitution is needed for Europe for increasing democracy, strengthening the global role of the EU and satisfying the needs of its citizens - A constitution would strengthen the European consciousness, therefore it is a key step towards a federal EU ARGUMENTS AGAINST THE INTRODUCTION OF THE REFORMS CONTAINED IN THE DRAFT CONSTITUTIONAL TREATY - the preparation for the enlargement is done by the Treaty of Nice, the European Union is ready to face the challenges of globalisation and enlargement, thus there is no need for further reforms

24 25 - a constitution would result in the decrease of national sovereignty of the EU member States - a constitution would not represent the interests of the European people, but the interests of the European political actors, thus it is against the democratic values of the European Union My dissertation uses two ways of critical research. In the first part I attempted to collect evidences for/against the necessity of the reforms proposed by the Convention. So the question was whether there is a need for a new reform from the EU s point of view. The answer was supported with evidences found in previous reforms. The decision is already made and the draft Constitutional Treaty is finalised. In the latter sections of my paper I will focus on the document itself, the debate on it and all the topics included in the draft. In the next section I am going to analyse the results of the working groups. Now I will broaden my aspects of research. In the first section I focused on the interest of the EU, but from now on, I am going to focus on the interest of the EU and the people living in the EU. My questions will be the following: Was the result of the working group a good basis for the draft Treaty or the questions remained open? Are the results in line with democracy and people s interest? Do they give a framework for a stronger Europe?

25 26 3, A critical analysis of the results of the working groups (WGs) Introduction The European Convention set up 11 working groups to provide a basis for the debates in the Convention in 11 different areas. The proposals of the working groups worked basically as the framework for the draft Constitutional Treaty. The working groups went in depth into subjects, which would have been too difficult to discuss on plenary sessions 34. The establishment of the working groups happened in three phases. In the first phase, six working groups were set up in the following topics: I. Subsidiarity II. Charter of Fundamental Rights III. Legal personality IV. National parliaments V. Complementary competences VI. Economic Governance These six working groups finished their work in September-October These WGs dealt with key questions that provide a basis for further discussion. In the second phase, the Convention set up four new working groups, which discussed the following topics. VII. External Action VIII. Defence IX. Simplification X. Freedom, security and justice XI. Social Europe 33 Basic information on working groups : Though in some cases the discussion was left to the plenary sessions of the Convention

26 27 As you can see, these four discussion topics may bring results in more specified policy areas, like Justice and Home Affairs or the CFSP. The second phase working groups finished their work in December The last working group on social issues continued its work until the beginning of In the following the subject of research will be the results of each working group. I will critically look at the results, whether they provide a good basis for the Convention s final proposals. Firstly I am going to summarize shortly the results of the working groups and then I will investigate the key issues that raised the greatest debates in the European Convention. The extent of debates is in itself a criticism of the proposals. 3.2 The working group on subsidiarity PROPOSALS The basic task of the working group on subsidiarity was the definition of community and national competences and the assurance of the greatest effectiveness in legislation. The proposals of the working group are built on three subjects: - the application and recognition of the principle of subsidiarity in the preparation phase of legislative procedure - the setting-up of a political early alert system aimed at the increased participation of national parliaments in the control of the application (ex-ante system) - the possibility for national parliaments to apply to the European Court of Justice if concerns emerge on the application of the principle of subsidiarity (ex-post system) According to the views of the working group, the principle of subsidiarity could be applied the best in the early phases of legislation. The Commission could have key role in the supervision of this principle right at the initiation of proposals. Furthermore, the working group initiated that a Mr/Mrs Subsidiarity should be appointed within the Commission, who would be responsible for supervising subsidiarity. This proposal was not even voted upon within the working group. The remarks of Slavko Gaber, Slovenian Member of the European

27 28 Convention truly reflect the reasons, namely that the creation of this position would mean a duplication of functions. The principle of subsidiarity should be applied by each of the Commissioners 35. For the early alert system the working group proposed to provide the possibility for national parliaments to give an opinion on the application of the principle of subsidiarity in EU legislation proposals. In this case the national parliaments would be informed on the proposals the same time as the European institutions. If more than 1/3 of the nations had concerns about the legislative proposal, the Commission would have to revise it. It is important that protest can be made only on the application of the principle of subsidiarity, not on the content of the legislative proposal itself. This would create an ex-ante supervisory mechanism. The working group proposed that a nation should have the possibility to turn to the Court of Justice, if it considers that the legislation accepted is against the principle of subsidiarity. The Committee of Regions would have the right to bring a case to the Court of Justice in the same case. DEBATES There were huge debates in the Convention on the proposal of this working group. First of all the ex-ante alert system was criticised. Many of the members agreed on the system itself, but protested against the proposed mechanism. Many feared that the national parliaments would use their right of opinion to plead at the Court of Justice later on. Many of the representatives doubted the relevance of the 1/3 revision limit. Some members protested against the right of national parliaments to turn to the European Court of Justice when they think the principle of subsidiarity was hurt. Furthermore the majority didn t like the idea that regional parliaments could do the same. As you see, the debate on the principle of subsidiarity revealed many deficiencies of the proposal. In my opinion the greatest danger in the ex-ante and ex-post system is that Member States are going to use this supervisory power to block certain legislative proposals 35 Letter by Mr. Slavko Gaber Member of the European Convention- Remarks on the WD "First Proposals for the Conclusions.",

28 29 or at least hinder them by applying to the European Court of Justice. The 1/3 ratio of protesting nations needed is quite low, therefore it would give too much power to a small group of Member States. Some members would strengthen the role of national parliaments. Jens Peter Bonde, member of the Convention would extend the power of national parliaments to be able to adopt the legal base of any community legislation 36 The debates about the principle of subsidiarity were still open at this point. In my opinion the application of the principle is healthy for the citizens of the EU, since the policies could be implemented more effectively. The Member States could form policies according to their local conditions and with greater effectiveness. However, a healthy balance should be kept in the ex-ante system, not allowing nations to frequently block decision, because it would lead to a paralysed legislation system that is disadvantageous for both the EU and its people. Finally, three issues were left for further discussion: - whether the two chambers of a two-chambered parliament should be informed at the same time in an ex-ante supervisory system - the number of protests needed for a revision by the Commission - whether the early alert mechanism should be linked with the ex-ante mechanism 3.3 The working group on the Charter of Fundamental Rights PROPOSALS The question was not whether the Charter of Fundamental Rights should be incorporated in the Constitutional Treaty, but the way this should be done. The other issue was the accession of the EU to the European Convention on Human Rights. The basic opinion of the working group was that the Charter itself is designed to be incorporated in a later constitution-like treaty 37. However, some concerns were made about the inclusion of the 36 Contribution to the proposals for Conclusions, Jens peter Bonde, , Brussels Of course many points should be modified with the incorporation