Towards the IGC: Weighing the Options · Towards the IGC: Weighing the Options Research Paper 95/123 5 December 1995 This paper will look at various reports by the Reflection Group,

Towards the IGC: Weighing the Options

Research Paper 95/123

5 December 1995

This paper will look at various reports by the Reflection Group, the institutions and somemember states on matters for discussion at the Inter-Governmental Conference to be convenedin 1996.

The Reflection Group's final report will be submitted to the European Council summit inMadrid on 15-16 December and this is expected to mark the end of the preparatory stage ofthe IGC. The final report became available on 5 December but could not be included forconsideration in this paper.

Vaughne Miller Tom Dodd

International Affairs and Defence SectionHouse of Commons Library

Library Research Papers are compiled for the benefit of Members of Parliament and theirpersonal staff. Authors are available to discuss the contents of these papers with Membersand their staff but cannot advise members of the general public.

Contents

Page

I Introduction 5

II Reflection Group Timetable and Agenda 5

III Reflection Group Progress Reports 7A. Institutional System 7B. European Parliament and National Parliaments 8C. European Council, Council of Ministers and Qualified Majority Voting 10D. The Presidency 12E. European Commission 12F. Other Institutions 13G. Citizenship of the Union 14H. Transparency 15I. Second Pillar: Common Foreign and Security Policy (CFSP) 16J. Defence: the Role of NATO and WEU 19K. Third Pillar: Justice and Home Affairs 20L. Law-making instruments 21M. Comitology 22N. Article 235 23O. Subsidiarity 23P. Budget and Finance 24Q. Policy Areas 25

IV WEU Contribution to the IGC, 14 November 1995 26

V Simplification of the Treaties 29A. Council Note to the Reflection Group on the Simplification

of the Treaties, 17 October 1995 (SN 513/95) 29B. Bieber Report on the Simplification of the Treaties, 25 September 1995 32

VI Some Views from the Member States 34A. Franco-German report on the new stage in building Europe,

11 October 1995 34B. Britain at the IGC 36

VII Negotiations on EU Foreign and Defence Policy 38

VIII Conclusion 41


I Introduction

The Reflection Group held its inaugural session on 3 June 1995 and will have held twelvefurther meetings before presenting its final report to the European Council summit in Madridon 15 and 16 December. The Group is composed mainly of Foreign or European Affairsministers from the member states, together with two MEPs and a Commissioner. It is chairedby the Spanish Foreign Affairs Minister Carlos Westendorp for the EU presidency. The fullcomposition and background to the preparations are described in Library Research Paper95/76, Towards the IGC: Enter the Reflection Group, 20 June 1995. Both the CommonsSelect Committee on European Legislation and the Lords Select Committee on the EuropeanCommunities have reported on preparations for the IGC1 and many of the subjects raised inthe Reflection Group have also been considered by these two Committees. The ForeignAffairs Committee has also reported on the British approach to the IGC.2

This paper will look at the progress reports of the Reflection Group and other recent reportsby the EU institutions and member states.

II Reflection Group Timetable and Agenda

The Reflection Group has met twice a month since June and is nearing the end of a three-stage programme in preparation for Madrid. Each member was given a list of topics fordiscussion by the Presidency and two reports have now been published to mark the end ofthe first two phases of the work programme. Each topic will have been discussed twice bythe end of the second phase. The third phase will be finalising the report and submitting itto the Madrid summit. The topics for consideration centred on five issues:

- challenges, principles and objectives of the Union

- the institutional system

- the citizen and the Union

- the foreign and security policy

- the instruments at the Union's disposal

1 Select Committee on European Legislation, Twenty-Fourth Report, The 1996 Inter-Governmental Conference: TheAgenda, Democracy and Efficiency, the Role of National Parliaments, HC 239-I, 1994-95; Select Committee on theEuropean Communities, 1996 Inter-Governmental Conference, HL Paper 105, 1994-95.2 Foreign Affairs Committee Third Report, European Union: Preparations for the 1996 Inter-GovernmentalConference, HC 401, 1994-95.

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At an informal summit of heads of state and government in Formentor on 22 /23 September,it was confirmed that the IGC would begin under the Italian presidency in the first half of1996, probably in March or April, and end, it was hoped, in 1997 at the latest. ChancellorKohl hoped that it would end under the Dutch presidency in the first half of 1997, PresidentChirac wanted a relatively short Conference which would end in 1996, and the Belgian PrimeMinister Jean-Luc Dehaene thought it would end in the summer of 1997,3 although anysuggestions as to when the Conference might end remain purely speculative. The IGC willoperate by "common accord" (Article N) which means that the decision to adopt a set ofamendments will have to be unanimous. In the event of the IGC being deadlocked, amajority of states could decide to terminate or suspend it, but in that case the status quowould prevail.

The Reflection Group's task is to draw up a list of what it has called "real" problems facingthe Union and consider the various options for solving them, always taking into considerationthe implications of future enlargement. Its aim is not to negotiate but to identify the prioritiesit believes will need to be addressed by the IGC.

The activities of the Group have generally been reported to the House in parliamentaryanswers.4 The Government has not so far agreed to publish a White Paper on the IGC,although this has been recommended by the European Legislation Committee in its IGCreport and raised on a number of occasions in parliamentary questions.5 Neither the SingleEuropean Act nor the Maastricht Treaty on European Union were preceded by GovernmentWhite Papers and the main precedent is the White Paper published in 1971 at the time of UKnegotiations for entry into the Common Market.6

In addition to the submission of the Reflection Group final report the Madrid EuropeanCouncil agenda will probably also include a discussion of EMU, fraud in the Union and howto combat it, the economy, competitiveness and employment, subsidiarity and deregulation,enlargement, and a number of external issues such as Bosnia, the EU-US summit on 3November and EU-NAFTA relations. If the final report is adopted by the European Councilthere would appear to be no impediment to the IGC commencing in spring 1996 as planned.If there is no agreement on the priorities or options identified by the report, furtherpreparations might be required. Under Article N(2) the IGC could be convened at any datebefore the end of 1996.

3 Agence Europe 6570, 25/26 September 19954 eg. HC Deb, 6 July 1995, cc325-6W; HC Deb, 27 October 1995, cc860-1W; HC Deb, 30 October 1995, cc67-8W5eg. HC Deb, 29 November 1995, c.11816 The United Kingdom and the European Communities, Cmnd 4715, July 1971

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III Reflection Group Progress Reports

The first phase of the Reflection Group's programme finished at a meeting on 24 and 25 Julyat which Community legal instruments, subsidiarity, financial resources, policies onenlargement, new and common policies were discussed. The Group published an interimprogress report at the end of the first phase7 which summarised itsr views on institutionalmatters, citizenship of the Union, the CFSP and legal instruments. The report sets out theoptions considered and gives majority and minority views on most items without identifyingindividual member states. After each section, areas for reflection and further considerationare suggested. These suggestions are taken up in the second report, the so-called WestendorpReport, published on 10 November, which marked the end of the second phase. TheWestendorp Report pulls together the opinions of the Group following the "second reading"of the topics. Similar ground was covered and there appears to be no substantial shift inposition among the Group members. There is some amplification and expansion of ideasexpressed in the first report and these are considered below. The final report is expected tobe adopted at the Group's last meeting on 5/6 December.

A. Institutional System

First Report

In the Group's view a single institutional framework should be maintained and the presentinstitutional balance respected, although this would not preclude institutional adjustments,particularly in view of forthcoming enlargements which would make institutional reformimperative. The official languages of the Union would be retained in the interests of culturaldiversity, transparency and legal certainty.

Westendorp Report

Within the single institutional framework the Group also confirmed that there would be roomfor more flexible arrangements for the gradual incorporation of common policies in whichthose member states that wanted could participate.

7 SN 509/1/95 REV 1 (REFLEX 10), 1 September 1995, Progress Report from the Chairman of the Reflection Groupon the 1996 Intergovernmental Conference.

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B. European Parliament and National Parliaments

In its Twenty-Fourth Report the European Legislation Committee highlighted the difficultiesexperienced by the Committee in obtaining relevant EC drafts and other documentation insufficient time and in an appropriate form to allow effective scrutiny to take place.8 TheCommittee hoped that a minimum period of notice and a coordinated system of electronicdata exchange could be introduced to facilitate the scrutiny activities of national parliaments.In its response9 the Government sympathised with the Committee's scrutiny problems and was"attracted" by the idea of a minimum period of notice for legislative and other significantdocuments to be discussed by national parliaments. The Government also drew attention tothe Interchange of Data between Administrations (IDA) to which it gave its support.However, as this system was unlikely to be operative for some time, the Government was"exploring with the Council Secretariat and the Commission an ad hoc system for theelectronic transmission of scrutiny documents to Whitehall".10

First Report

The Group thought that the EP should agree on a fixed maximum number of seats (700 wassuggested), implement a harmonised electoral procedure and simplify the legislative processby reducing the number of decision-making procedures to just three: co-decision, consultationand assent. The co-decision procedure would also need to be simplified.

The majority was not in favour of creating a second chamber of the EP composed of nationalparliamentarians, which had been suggested during the wider debate on the future role of theEP, but was keen to strengthen the role of the EP as well as that of the national parliaments.To this end, a High Consultative Council on subsidiarity was proposed, consisting of nationalparliamentary delegations, in an effort to implement and expand on Declarations 13 and 14of the Treaty on European Union (TEU).11

Westendorp Report

The Group confirmed its earlier opinion on the need to review the number and complexityof legislative procedures and its opposition to the creation of a second chamber of nationalparliamentarians. There was still no agreement on the scope of the co-decision procedure andagain "one member sees no reason for a further increase in the powers of the European

8 Paras. 63, 72-789 Cm 3051, 1994/9510 Paragraph 1011 Declaration on the role of national parliaments in the European Union and Declaration on the Conference ofParliaments.

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Parliament". The current appointment of the Commission by the EP (introduced by theMaastricht Treaty) was deemed satisfactory. In addition to increasing the EP's powers incombating fraud and monitoring the Commission's executive control, the Group alsorecommended increasing the powers of the Court of Auditors. The British Government hasin the past emphasised the importance of this Court's role in monitoring and tackling EUfraud and was behind the Maastricht proposal to make the Court of Auditors an officialCommunity Institution.

On the subject of national parliaments, the Westendorp Report expanded considerably on theearlier version. The role of national parliaments in relation to the EU needed to bestrengthened but "The procedures for exercising these powers are not a matter for the Unionbut are for each state to organise". Paragraph 107 sets out how this might be achieved:

National parliaments should be provided with all the necessary information by theUnion and its institutions. In particular, each national parliament should receiveclear and complete documentation in its official language sufficiently in advance(four weeks has been mentioned) on every Commission proposal which is to bediscussed and decided on by the Council, so that each Parliament can examine anddiscuss it beforehand with its government".

To this end the Group asked the Commission and the Council to prepare a code of conduct"which will facilitate the work of the national parliaments in practice".

The role and possible institutionalisation of COSAC (the commission of delegates fromnational parliaments with one from the EP) was discussed and largely rejected on thegrounds that its informal nature was more appropriate for its role as a body primarily usedfor the exchange of information. A proposal for ad hoc committees from national parliamentsto meet an EP delegation to discuss second and third pillar matters was "worth studying".It would also be worthwhile in the Group's view for Commissioners to appear before nationalparliaments "whenever circumstances warrant this". 12

The Group was not in favour "as a general rule" of convening of Conferences of NationalParliaments.13

12 It is not clear what circumstances might warrant such an appearance, and although Commissioners have from timeto time appeared before Select Committees, they would no doubt welcome more regular opportunities for this.13 The Assizes, see Declaration 14 of the TEU

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C. European Council, Council of Ministers and Qualified Majority Voting

First Report

The European Council would retain its current role, as would the Council of Ministers butwith a "strengthening of its ability to act". There was broad agreement for maintainingunanimity voting in the Council for the amendment of primary legislation (Article N onamending the Treaty, Article O on admitting new member states and other decisions of aconstitutional nature which require ratification by the individual member states). A majoritysupported an increase in qualified majority voting for Council decisions on secondarylegislation (directives, regulations and decisions) largely for reasons of efficiency.

In order to avoid the problems of securing unanimity among the fifteen members, variousideas were floated which were less difficult to achieve than unanimity but more difficult thanthe approximately 70 per cent needed for a qualified majority. The intermediate options werea super-qualified majority, positive abstention and consensus minus one. These complexformuli are not explained in the report and any judgement on their acceptability would dependon how particular states react to the possibility of being part of a minority on particularissues.

1. Super-qualified majority

This might involve raising the present qualified majority threshold of 70 per cent to around80 per cent, thus requiring more member states to agree but without needing a full consensusfor a proposal to be adopted. This would prevent the blocking of a proposal by just onemember state but would, compared with the current QMV arrangements, make it easier fora minority of states to block a proposal.

2. Positive Abstention

This would presumably lower the threshold for a qualified majority, making the outcomedependent not on 70 per cent of the total number of votes for all fifteen member states buton 70 per cent of the total votes of those countries which voted. Thus, if one member stateabstained, the majority would consist of 70 per cent of the total for 14 member states. Thiswould effectively make abstention count as a yes instead of a no and it would not benecessary for all fifteen to vote for a proposal to be adopted.

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3. Consensus minus one

The aim of this would be to prevent one member state from blocking a proposal which theother 14 wanted to adopt. One state which voted against a proposal could be overruled bythe rest.

A review of the weighting of votes had been required by the Ioannina Declaration of March1994 following the UK objection to the adjustment in weighted votes during the last accessionnegotiations. Some delegates favoured a system that would reflect the population of themember states, so that the majority of the population of the Union could not find themselvesoutvoted by a minority of the population, while others insisted that the weighting of votesshould be based on "the principle of sovereign equality of states" rather than the populationfactor.14

Westendorp Report

There was consensus (as opposed to the earlier broad agreement) for maintaining unanimityfor the amendment of primary legislation and a large majority continued to support theextension of QMV, with some calling for its generalisation. As before, objections were raised"in the defence of sensitive interests", a view supported by the British Government. Therewas recognition that the threshold for the qualified majority "should not leave a significantproportion of the people of Europe in a minority". However, as before, the Group could notagree on how to put the majority view into practice. The temporary solution offered by theIoannina Compromise to the problem of proportional under-representation by the largerstates and an increase in the number of smaller states in the Union would have to be replacedwith a permanent solution at the IGC, but the Group could not agree as to how.

A majority favoured making public the initial debate on a legislative proposal and the finalvote on it. The final votes taken in the Council have been made public since October 1993following agreement reached at the Edinburgh European Council on openness andtransparency. Although several members wanted the Council to meet in public when actingas legislator, it was pointed out that in practice it was not easy to separate the Council'sdiscussions as legislator "from those as a political institution with executive powers".

14 Qualified majority voting and the future of the veto are discussed in Library Research Papers 94/47 and 94/51

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D. The Presidency

First Report

The importance of the presidency in conducting EU affairs and the system of rotatingpresidencies were stressed, but with the qualification that the prospect of an enlarged Unionwould make a new system inevitable. The Group looked at various options combiningpermanence and rotation, such as "presidency by teams". It also considered the possibleelection of a President or High Representative of the Union for external policy matters.

Westendorp Report

There was no consensus on the various presidency arrangements combining permanency androtation.

E. European Commission

First Report

The Group was in favour of retaining the Commission's powers of initiative and ofsimplifying Commission procedures in committees. On the composition of the Commission,the Group considered two options: maintaining the present arrangement of at least oneCommissioner per member state, which would guarantee involvement by all member states,or reducing the Commission to the number of portfolios that were deemed necessary(estimated at between 12 and 15), which would "restore the original character of the Collegeas a homogeneous whole, made up of personalities who are clearly identifiable by the publicwithout being associated with specific countries". The Treaty requires that the independenceof Commissioners should be "beyond doubt", so in theory there ought to be no objection toa Commission on which not all member states were represented. In practice, those stateswhich were not represented might well feel disadvantaged by not being represented.

Westendorp Report

There was broad agreement that proposals still "in the legislative pipeline should lapse atthe end of the Commission's term of office, with the simultaneous dissolution of the EuropeanParliament". The Maastricht Treaty brought in concurrent terms for the Commission and EPby amending the Commission's period of office from four to five years. Each newCommission and Parliament would start with a new legislative programme, although lapsedproposals could be reintroduced as new ones. This would introduce a system similar to that

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of UK Bills which lapse if they are not considered within the period of the session in whichthey are introduced.

The two options in the first report were reconsidered, with indications of more sympathy forretaining the system of at least one Commissioner per member state (ie two Commissionersfor the larger states). The advocates of this position thought that an enlarged Commissioncould "strengthen its internal consistency by means of greater authority for its President,through a better organised division of labour and through greater parliamentary control".Furthermore, a Commission of say 36 members would help to safeguard the diversity of aheterogeneous Union.

Supporters of the proposal to reduce the size of the Commission to reflect the number ofnecessary portfolios maintained that it had the advantage of "visibility and consistency, itrestores to the Commission its collegiate nature and independence, it avoids proliferation,bringing savings in human and financial resources".

Other options were considered, two of which were to some extent acceptable. One allowedjust one Commissioner per member state, which was regarded by some as creating anunbalanced situation. The other proposed two different kinds of Commissioners, full membersand voting or non-voting deputies.

A majority favoured making the Commission more accountable to the EP, particularly inTitles V and VI, the second and third pillars.

F. Other Institutions

First Report

The majority favoured retaining the present functions of the European Court of Justice andincreasing the powers of control of the Court of Auditors over fraud. It would consider thepossibility of increasing the scope and powers of the Committee of the Regions and theEconomic and Social Committee.

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Westendorp Report

A majority favoured increasing the term of office of ECJ judges to nine years from theirpresent 615 with no possibility of reappointment. The arguments over the future number ofjudges were similar to those concerning the number of Commissioners: either one per memberstate for fair representation, or, in the interests of efficiency, fewer than one per memberstate.

Of the British Government's proposals on the ECJ (see below), only that to improve the speedof translation of documents was adopted by the Group.

A majority was in favour of providing the Committee of the Regions with an administrativemechanism of its own rather than a share in that of the Economic and Social Committee, inimproving its consultative functions and extending its scope for consultation to the EP. Somewanted it to be given an "active legal capacity" before the ECJ. At present the COR hasrather limited consultative functions, no legal standing before the Court but some right tobring to the attention of the Commission its own proposals on matters affecting the regions.After some initial wariness on the part of the EP, which feared encroachment of the COR intoits own territory, the two institutions have been fostering closer relations over the last year.The EP is unlikely, however, to agree to grant the COR powers which might rival its own.

G. Citizenship of the Union

First Report

The Group recognised that the concept of citizenship of the Union has been viewed differentlyin the member states and with some confusion as to its status alongside national citizenship.The majority favoured developing the notion of citizenship by strengthening the "specificrights" of EU citizens already included in the Treaty (i.e freedom of movement and residence,diplomatic protection etc). This would include expanding on the principle of respect forhuman rights as set out in Article f(2) of the Treaty16 and would provide for the possibilityof expulsion of a member state government which did not recognise fundamental humanrights. These rights would include the express condemnation of racism and xenophobia anda non-discrimination clause. There was no general support for extending rights to includeprohibition of the death penalty, the protection of minorities or socio-economic rights suchas those in the Council of Europe's European Social Charter. The ECJ was invited (with a

15 Article 16716 Respect as general principles of EC law for the rights guaranteed by the European Convention on Human Rightsand rights arising from the constitutional traditions of the member states.

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minority opposed) to give an opinion on Community accession to the European Conventionon Human Rights.

Westendorp Report

A broad majority favoured the right to information with a majority calling for an EUvoluntary-service "peace-corps". The question of human rights was looked at in more detail.In addition to equality for men and women, anti-discrimination clauses and the other mattersraised in the first report, specific mention was made of anti-semitism with specialconsideration for the disadvantaged. Some wanted to elaborate on the concept of respect forfundamental human rights in Article F.2 of the Treaty. They wanted "suitable action" to betaken for non-compliance and a majority was in favour of penalties, even suspension of therights inherent in EU membership for "serious and repeated breach of fundamental humanrights or basic democratic principles". On the subject of individual protection, some thoughta Bill of Rights ought to be included as an annex or preamble to the Treaty although a studyof this possibility had revealed technical difficulties. A majority remained in favour of ECaccession to the European Convention on Human Rights.17

H. Transparency

First Report

There was agreement on the need for greater transparency in the work of the EU, morepublicity, information and consultation on the activities of the Council and fewer inter-institutional agreements. It was recommended that the functioning of the institutions shouldbe simplified. The Treaty text itself was singled out for simplification to make it moreaccessible (see Council Note below).

Westendorp Report

The Group confirmed the need for the "clarity and quality of legislative texts" to be improved.Some thought that a general principle of "access to documents" should be incorporated intothe Treaty.

17 The British Government is opposed to EC accession to the Convention. As Baroness Chalker said in a statementoutlining progress on the IGC on 31 October 1995: "We maintained our opposition to EC accession to the EuropeanConvention on Human Rights and to the suggestion of a Bill of Rights in the EU Treaty" (HL Deb, Vol 566, cc153-4WA).

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I. Second Pillar: Common Foreign and Security Policy (CFSP)

First Report

Structure

In its consideration of Title V of the TEU18 the Group acknowledged shortcomings in theoperation of Second Pillar provisions, although some were more forgiving than others as tothe reasons. Enlargement would necessitate a clarification of objectives and a strengtheningof instruments for implementing actions. The problem with the CFSP was identified as lyingin the separation of the Union's external policy dimension and its external economicdimension. The lack of consistency in decision-making and efficiency between theCommunity and Second Pillars meant that whereas under the former significant matters withfar-reaching economic implications could be decided by a qualified majority vote, othersunder the Second Pillar required a consensus which was seldom forthcoming.

Options discussed included removing the CFSP from the pillar structure while retainingspecific decision-making and implementation procedures within the Community pillar (as withEMU) or retaining the pillar structure but with greater co-operation between them and moreconsistency in the inter-institutional relationships involving the Council, COREPER and thePolitical Committee.

The Group approved of the creation of an analysis, forecasting, planning and proposal unitunder the CFSP, which would not require Treaty amendment. This could be set up at theCouncil's General Secretariat with the Secretary-General raised in rank to ministerial level.This would on the one hand emphasise the importance of the role of the member states withinthe CFSP and on the other avoid creating a new body (to which the majority was opposed).Another option was the appointment by the European Council of a High PermanentRepresentative for the CFSP at ministerial level who would conduct external policy on behalfof the Union. This person would chair the Political Committee and head the planning andanalysis unit, which would be made up of the member states, the Council and Commissionand possibly WEU representatives. There were fears that this arrangement might conflict withthe responsibilities of the Council presidency. The role of the unit was questioned: shouldit have a dual role of analysis and planning on the one hand and the right of initiative on theother. It was felt that any risk of confusing responsibilities could be avoided if the "tripartite"arrangement (member states, Council and Commission) were adopted.

18 Second pillar on a common foreign and security policy

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CFSP Voting Procedures

There were varying views on the question of voting procedures for CFSP matters, with someviewing the lack of QMV as a cause of ineffectiveness and others insisting that consensus anda veto were essential for matters of such concern to national sovereignty. Other intermediatead hoc voting options were suggested (super-qualified majority, positive abstention, orconsensus minus one, see explanation above).

Implementation

Implementation of the CFSP would entail either retaining the present central role of thepresidency, or, and in the light of prospective enlargements, giving the presidency "a higherprofile and greater permanency". Alternatively, this responsibility could be given to an adhoc body behind what was called a "Mr or Ms CFSP" Council figurehead.

Financing the CFSP

The group agreed that financing the CFSP should be guaranteed by specific procedures toensure that the necessary funds were available for rapid action when required. The majoritythough that the CFSP should be financed out of the Community budget.

Role of EP

It was generally agreed that the EP's role would be different for the CFSP and there werevarying views on the degree of involvement by the EP in it, ranging from no involvement atall to more EP participation in determining the broad lines of CFSP.

Legal Personality for the Union (including CFSP)

There was support from several members for granting the Union international legalpersonality. At present the Community has international legal personality, which means thatthe Commission may negotiate and ratify international agreements, conventions and treatieson behalf of the member states. The new proposal would grant similar status to the Union,including the second and third pillars.

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Westendorp Report

The Group acknowledged "some positive results, such as the Stability Pact", as well as someshortcomings in the operation of Title V of the Treaty. Many called for a "global approachto overcome inconsistencies between the external dimension of the Community and foreignpolicy proper". The need for greater consistency was emphasised and many confirmed theirbelief in the inherent weakness in the separation of political, economic and military aspectsunder this pillar. Many pointed to the lack of coordination between the Community pillar andthe CFSP pillar and called for qualified majority voting in the latter as there was in theformer.

A broad majority of the Group favoured the granting of international legal status to theUnion to enable it to conclude international agreements on subject matters in Titles V andVI. Some wanted clarification of the distinction between common positions and joint actionsand many wanted the introduction of a "comprehensive regulatory system".

The Group expanded on its earlier proposal for an analysis, forecasting and planning unitin the preparatory stage of the CFSP. This would not, it was thought, require any Treatyamendments. The division remained between those advocating more QMV in decision-makingin this area and those in favour of retaining consensus. Some thought that in timemanagement of matters arising under this Title would devolve to the Commission. This wouldmean more consistency between the CFSP and external economic measures. The majorityfavoured a Council figure for the management role, which would be "more in keeping withthe central role which states have within the framework of the Council in relation to theCFSP". Some favoured the idea of a High Representative for the CFSP (also in the firstreport) who would be subordinate to the European Council, the General Affairs Council andthe Presidency. Some supported the idea of a "Mr CFSP" who would be subordinate to thePresidency and others put forward a "synthesis option" under which the President of theEuropean Council would take charge of the CFSP, assisted by the Secretary-General of theCouncil with increased functions and by the relevant Commission Vice-President.

There was no consensus in the end on the "personification" of the CFSP. While many wantedthe Union to have a higher profile in this area, they did not want additional confusion overthe functions of the various bodies or conflicts of power between a new body and the Councilpresidency, nor fragmentation of the existing institutional framework or more inconsistency.

Edward Mortimer writing in the Financial Times, 22 November 1995, also commented on theseparate structure to deal with foreign policy, asking:

Why devise a completely separate set of procedures for the foreign policy of theUnion, when the means to conduct that foreign policy are those of the Community?

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It was a recipe for incoherence, and it has produced a lot of pointless turf battleswhich prevent anything much from getting done. The member states are on thewatch-out for the Commission interfering in foreign policy, which they regard as theirprerogative, while the Commission is obsessed with the fear that "pillar one" -traditional Community business - is being "contaminated with second pillar ie,intergovernmental - procedures. No wonder the public is disgusted with the wholeenterprise.

J. Defence: the Role of NATO and WEU

First Report

The Group looked at the new security and defence challenges in Europe and the need for acollective response in new areas of concern (besides the safeguarding of territorial integrityby conventional forces) such as internal civil conflict, the protection of minorities, violationof human rights, ecological disasters and the irresponsible use of new technology. Theimportance of NATO and the WEU as the European security and defence identity werestressed but the principle of national sovereignty as the basic point of reference and consensusin decision-making in this area were agreed. No-one should be obliged to participate inmilitary action or be able to prevent action by a majority of member states, and non-participating member states would be expected to show Community solidarity by contributingfinancially and politically (eg Germany during the Gulf War and in former Yugoslavia).

Only a minority thought the WEU should retain its autonomy and remain inter-governmental.Non WEU delegates did not favour an EU-WEU merger as they would not be able to acceptsome of the obligations of the Brussels Treaty which established the WEU. The majority sawintegration of the two bodies as a way towards the creation of a "genuine European securityand defence identity" in which a mutual assistance guarantee would reflect a similar solidaritybetween the member states to that in the economic sphere. Those favouring a merger wantedthe IGC to establish legal and political links between the two and minimal operationalresources that would enable the WEU to act as the military arm of the EU in the area of crisismanagement, crisis prevention and peace-keeping. Other interim measures were alsoproposed which fell short of full integration but which would make the WEU subordinate tothe EU and so allow the WEU to implement EU decisions with defence implications. Arevision of Article 223 of the Treaty on the production and trade in arms was also suggested.

Westendorp Report

The Group reported on the need to tackle "regional crisis management of widely differingpolitical, economic, social and humanitarian causes". Some wanted to contribute through the

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Petersberg tasks,19 with no automatic collective defence commitments. The means forEuropean operations were also considered including the development of the WEU'soperational capacity, particularly in intelligence, space co-operation, strategic transport orforces available to the WEU, including multi-national units.

There was discussion of, but no position taken on, a project for a European ArmamentsAgency, a common policy on exports and a possible revision of Article 223 on disclosure ofinterests, security and the arms trade.

The principle of national sovereignty and the rule of consensus was confirmed for decisionson defence matters.

There was agreement on the need for tighter relations between the EU and WEU "whilstrespecting in full all member states' national defence policies". The three earlier divisionsremained over the future status and role of the WEU in relation to the Union: full WEUautonomy; EU-WEU "reinforced partnership"; or the gradual integration of the WEU intothe EU, which was preferred by the majority of the Group. The various intermediate optionswere also reaffirmed. Some favoured "progressive convergence" with the EU via "somepolitical and legal commitment" but with the WEU subordinate to the EU. Others wanted aclear goal and timetable for a WEU-EU merger in the short term in order to avoid theduplication of structures for the CFSP and WEU. As for the method of integration, the CFSPwould take on crisis management functions, leaving the collective defence guarantee to a"defence protocol" to which member states could accede. The members from the WEUobserver states (Denmark, Ireland, Austria, Finland and Sweden) supported the intermediateoptions to develop a closer formal link between the EU and the WEU. The EU would "takeon an administrative function with regard to the EU for Petersberg-type missions in whichthose countries wished to be able to participate".

K. Third Pillar: Justice and Home Affairs

First Report

In the second part of its consideration of the citizen and the union, the Group looked at waysof strengthening the internal security of the Union under Title VI of the Treaty on co-operation in justice and home affairs. This was viewed as a response to public demand formore protection against organised crime, drug trafficking, illegal immigration and terrorism.The Group emphasised that the prospect of enlargement would mean a qualitative change inefforts to make the results match the challenge in these areas. Treaty provisions were

19 Humanitarian, peacekeeping and crisis management were among the tasks agreed in the WEU PetersbergDeclaration in June 1992.

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regarded as inappropriate because the legal protection of citizens required a legislativeframework, whereas the problems identified by the group included a lack of objectives andany institutional control mechanism. Many thought that asylum, immigration and externalborder controls should be brought into Community competence and that there should be closerinter-governmental police co-operation. Others defended intergovernmental rather thanCommunity competence in these areas because of their importance for national sovereignty.The Group considered the possibility of incorporating the Schengen Agreement on the liftingof border controls into the acquis communautaire "by means of a variable geometryarrangement". In other words, the Schengen arrangements would become part of the Treaty,but not all member states would necessarily participate.

Westendorp Report

The Group confirmed unanimously that the challenge to the Union had not been matched byresults. There was no unanimity, however, as to the causes or potential remedies. A majoritythought that Treaty provisions in this area were "inadequate and clearly deficient inoperation". The majority considered that this could be remedied by "comunitarising" thisTitle of the Treaty at least in part. There was unanimous agreement on the need to reducethe number of working group levels in this area. On the sensitive subject of immigration,some thought there ought to be a common status for legally resident third-country nationals.

L. Law-making instruments

First Report

Declaration 16 of the TEU provides for the IGC to "examine to what extent it might bepossible to review the classification of Community acts with a view to establishing anappropriate hierarchy between the different categories of act". The idea of changing thecategories of instruments (regulations, directives, decisions, opinions and recommendations)was mooted at the time of negotiating the Maastricht Treaty but was postponed until the 1996IGC.

The need to reform the present categories has arisen from a concern for more clarity andtransparency. A graded categorisation according to the importance of the act would, it wasthought, make for better understanding of the purpose and significance of Community acts.The Reflection Group looked at two possible options. One would be a hierarchy consistingof three levels of acts: constitutional, legislative and implementing. Treaties andconstitutional instruments would require unanimity in the Council of Ministers and ratificationby the member states. Legislative acts would be adopted on a proposal from the Commissionusing the co-decision procedure, and the Commission would be responsible for implementingprovisions, supervised by the Council and EP.

21


There was not overwhelming agreement for this proposal. Some considered it wouldintroduce an added complication into the system and that the sui generis nature of EC lawwas better suited to the present system.

Westendorp Report

There was still no consensus on proposals to improve the clarity and efficiency of decision-making by reducing the number of legislative instruments. Opponents maintained that thepresent instruments were best suited to the Union's "own particular nature" but that thequality of each act needed attention. They proposed that the use of the Directive needed tobe reviewed since it had come over the years to resemble the more complex, detailed anddirectly applicable Regulation, which was not its purpose as defined by Article 189 of theTreaty.

Ways of combating fraud was considered briefly in the first report but in more detail in thesecond. There was concern about the use of Article 171, which involves the Commission andthe ECJ in imposing penalties on governments of member states for failure to implement orfor incorrect implementation of EC law. Some wanted the Commission to be more active inusing these powers while others proposed amending the Article to enable the Court to imposepenalties without the need for the second court case currently required. A majority wantedthe Commission to be obliged to produce annual reports on the effectiveness of policiesimplemented and there was some support for giving private individuals more effective meansof legal redress against failure to comply with EC law.

M. Comitology

First Report

Reform of the procedure by which committees of national civil servants consider delegatedlegislation (comitology) was the subject of an inter-institutional modus vivendi of 20December 1994, which also put the matter on the IGC agenda.20 The Group was notunanimous as to how this procedure might be changed and so a compromise single-processapproach was suggested. The Commission, after consulting national experts, would decideon implementing measures under the supervision of the Council and EP. If three memberstates objected in the Council, the implementing measure would not be adopted.

20 OJC 293, 8 November 1995

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Westendorp Report

While there was still no agreement in this area, a large majority was in favour of simplifyingthe present "complicated and confused" committee structure. It was noted that the 1989Decision on committee procedure did not require Treaty reform and that improvements shouldtherefore be introduced before the IGC.

N. Article 235

First Report

Article 235 is the catch-all Article which enables the Community to act or to legislate byunanimous decision in the absence of any specific Treaty base.21 Objections in the past havebeen on the grounds that this Article might be used to introduce measures which had not beenincluded in the Treaty because they had not been considered part of Community competenceor Community objectives and which therefore ought to remain in the competence of themember states. The Group was in favour of retaining this Article and against incorporatinga catalogue of Union powers in the Treaty such as is found in many federal constitutions.

Westendorp Report

The Group confirmed its support for retaining this Article "as the instrument for dealing withthe changing nature of interpretation of the Union's objectives".

O. Subsidiarity

Subsidiarity, since its introduction in the Maastricht Treaty, has given rise to confusion anda variety of interpretations, many of which had been foreseen and extensively debated beforeits incorporation into the Treaty. The lack of clarity and the abstraction of the concept havemeant that a principle which is supposed to underpin large areas of decision-making does nothave the status of a dependable, legally based principle which could be challenged at the ECJ.

21 If action by the Community should prove necessary to attain, in the course of the operation of the commonmarket, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Councilshall, acting unanimously on a proposal from the Commission and after consulting the European parliament, takethe appropriate measures.

23


First Report

The Group emphasised the importance of subsidiarity and proposed ways of implementingthe principle effectively and without damaging the acquis communautaire. There was supportfor retaining the present wording of Article 3b22 but with the qualification that more controlwas needed by the Commission, the Court of Justice and the national parliaments inapplication of the principle. The need to strengthen the principle of "sufficient means" inArticle 3b as a way to moderate the exercise of Community powers was expressed. Variousmembers felt that the financial constraints of member states needed to be considered beforecommitting them to funding the costs of Union projects.

Westendorp Report

A substantial majority reaffirmed the view that subsidiarity imposes a "behaviouralobligation", defined as a "respect for the limits between the private and public spheres andwithin those spheres, between the various levels at which authority is exercised". Acknowledging the problem of subsidiarity remaining an "abstract principle without practicaleffect" and another fear that it could be used to undermine the powers of the Union, manyin the Group did not support an amendment to Article 3b but a guarantee that this Articlewould be "properly exercised in practice". For this, various control systems were suggestedinvolving both the EU institutions and national authorities.

A large majority rejected the proposal from the Committee of the Regions that it should beauthorised to bring proceedings to the ECJ for the incorrect application of the subsidiarityprinciple.

P. Budget and Finance

First Report

A 1993 Inter-institutional Agreement on budgetary discipline and improving the budgetaryprocedure provided for a re-examination of these questions at the 1996 IGC and the Grouptherefore looked at the Union's system of own resources, the possibility of a fifth own

22 The Community shall act within the limits of the powers conferred upon it by this treaty and of the objectivesassigned to it therein.

In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with theprinciple of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achievedby the member states and can therefore, by reason of the scale or effects of the proposed action, be better achievedby the Community.

Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.

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resource, the multi-annual financing programme, the budgetary procedure (eg the role of theEP) and the principle of sufficient means in Community financing. It was opposed, however,to parallel negotiations by the 1996 IGC of the next Financial Perspective Agreement (thefive-yearly agreement which establishes how the Community is financed, how much and bywhom).

The Group did not consider it necessary to reconsider the criteria or timetable for Economicand Monetary Union. The majority favoured a strengthening of the social content of theTreaty and making employment and protection of the environment priorities by incorporatingnew Articles into the Treaty or amending existing ones. The Swedish delegate, supported bysome but not all members, had earlier suggested that a kind of employment chapter beincluded in the Treaty.

Westendorp Report

Although there was continued opposition to a discussion of the Financial PerspectiveAgreement at the IGC, some thought the Conference ought to discuss the legal base for a newsystem of own resources and the role of the institutions in this.

Q. Policy Areas

First Report

During the Maastricht negotiations it was suggested that Community policies might beexpanded to include energy, tourism and civil protection. The Reflection Group concludedthat greater intergovernmental co-operation would be preferable to common policies. Severalmembers wanted a Treaty provision on the "outermost and island regions" of the Union andthat the concept of public service should supplement market criteria.

Westendorp Report

In addition to proposals for new policy areas, on which there was no agreement, the Groupconfirmed the importance of growth, competitiveness and employment as set out in the DelorsWhite Paper in 1993. A "considerable majority" wanted to incorporate the Social Protocolinto the Treaty and there was some support for incorporation of agreements such as thoseon the environment agreed at the Rio Conference "so that Community policies are geared toa sustainable development model".

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IV WEU Contribution to the IGC, 14 November 1995

In keeping with the WEU Maastricht Declaration and Article J. 4 (6) of the Treaty onEuropean Union (TEU), the WEU has been re-examining its relations with the EU. TheWEU decided to make its own contribution to the work of the IGC in the NoordwijkDeclaration of November 1994. The Permanent Council began this task following the WEUCouncil of May 1995. A finished document was presented to and approved by the WEUNovember 1995 Council held in Madrid.

The document is divided into a three part examination: of the WEU's relations with the EU;of the WEU's relations with the Atlantic Alliance and the operational role of the WEU; and,finally, an analysis of the options for the future of framework of European security anddefence.23

In the first category, much progress has been made. The WEU has, of course, expanded toinclude Greece as a full member, then first Denmark and Ireland as de facto observers (1992)and then Austria, Finland and Sweden, also as observers (1995). Arrangements for co-operation, consultation and information exchange between respective EU and WEU Councilsand Secretariats have been made. However, the Report found that agreement had not beenreached on the synchronization of the dates of meetings and the harmonization of workingmethods. Importantly, the synchronization of Presidencies, in so far as is possible betweenthe EU and WEU with asymmetric membership, had not been introduced.24 Relationsbetween the Parliamentary Assembly of the WEU and the EP remain undeveloped. TheReport also pointed to the lack of a joint EU-WEU crisis management mechanism to help theWEU with its task of elaborating and implementing "decisions of the Union with defenceimplications".25

Progress has also been made in fulfilling the agenda with regard to WEU-NATO relations setat Maastricht. For example, practical co-operation now takes place between both bodies withjoint Council meetings and meeting of sub-bodies. Practical problems such as the asymmetryin membership of NATO and WEU and the different structural and political-militaryresponsibilities of the two organizations, for example the fact that NATO does not have aPresidency and the WEU no standing military structure, have impeded liaison.

23 WEU Contribution, Para 1024 Para 1825 Para 20

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Operational enhancements to the WEU between 1991 and 1994 have been set out inprevious Library Papers .26 These were supplemented at the Lisbon Council in May 1995with the decision to establish a new Politico-Military Working Group to advise the Councilon crises and crisis management. A standing Situation Centre is being founded, under theauthority of the Council and the Group, which will draw together information from otherWEU bodies, Member countries, the EU and NATO. In a further innovation, a MilitaryDelegates Group (MDG), comprising of the WEU Chiefs of Staff, has been established. TheMDG may in future play an important role in providing military advice to the Council andPlanning Cell. (In some sense, it could become a prototype WEU Military Council.) AtLisbon, it was, in addition, decided to turn the WEU's satellite intelligence centre atTorrejon in Spain into a permanent facility. An Intelligence Section is to be set up within thePlanning Cell.

At Lisbon, the Council adopted a document on a WEU Humanitarian Task Force, based ona British-Italian initiative and Franco-British proposals for peacekeeping and conflictprevention in Africa. These are consistent with Petersberg-type missions of crisis managementand humanitarian intervention which the WEU agreed to concentrate in 1992. The LisbonCouncil also noted the Permanent Council's proposals for implementation of Associate Partnerstatus. Associate Partners will now, inter alia, be able to participate in WEU workingparties, attach liaison officers to the Planning Cell and identify units potentially available toparticipate in WEU operations.27

The WEU's operational capabilities have also been enhanced with the creation of variousgroups of Forces Available to the WEU (FAWEU). These include the EuroCorps, recentlydeclared operational, the Anglo-Dutch Amphibious Force and the NATO MultinationalDivision Central (Britain, Belgium, Netherlands and Germany. Two new forces were addedin 1995: EUROFOR, a light infantry forces of around 10-15,000 men comprising brigadesfrom France, Italy and Spain with a headquarters at Florence; and EUROMARFOR,comprising ships from these three states and also Portugal. The latter will have access toFrench, Italian and Spanish aircraft carriers. Both of the new forces will train forhumanitarian and other crisis management tasks. (At the Lisbon Summit,the Britishgovernment objected to the statement that they would be used "as a priority" in the WEUcontext as well as being available to NATO since this implied an inequality between the twoorganizations). In Mostar, WEU operates a police training mission in support of the EUadministration of the city. The mission was recently joined by contingents of policemen fromAustria, Finland and Sweden.

26 Research Paper 95/45, Towards the IGC: Developing a Common Defence Policy, April 1995 Section III27 The May Council authorized the start of dialogue with Cyprus and Malta which will evolve in line with future EUaccession negotiations with these states.

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The third section of the WEU Contribution examines the future framework of Europeansecurity and defence. This was drafted under the Spanish WEU Presidency and thereforefollows the same themes and structure of Security and Defence sections of the ProgressReports from the Reflection Group. The WEU puts forward three options for developing itsrelations with the European Union.

Option A, a reinforced partnership between WEU and EU, is essentially no different from theBritish Memorandum on the United Kingdom's Approach to Treatment of European DefenceIssues at the 1996 Inter-governmental Conference, dispatched to EU members in March1995. Britain will assume the WEU Presidency in January 1996 and is pledged to further theWEU's operational development.28

Option B includes three intermediate stages towards an EU-WEU convergence. Theseinclude: B1; the issue of general guidelines on questions having defence implications by theEuropean Council to the WEU; and B2; amendment of Article J.4 (2) to make it clear thatthe WEU is politically subordinate to the EU with the former having the task of implementingthe decision of the latter. B3 would differ in suggesting a legally, and therefore, juridically,binding link between EU and WEU. Although the WEU would be required to implementdecisions and actions of the EU with defence implications, the types of missions involved,probably Petersberg missions, the voluntary nature of national involvement and theirfinancing will be stipulated.

Option C favours integration of the WEU into the EU, possibly as soon as 1998 when thedenunciation clause of the Treaty of Brussels comes into effect.29 Under Option C1, the WEUwould be abolished and a Common Defence Policy would be implemented using CFSPstructures. Opting out arrangements, similar to those allowed for monetary union, would beallowed for states not wishing to participate in collective defence commitments. Option C2would also involve the second pillar determining a Common Defence Policy but this wouldinclude a distinction between crisis management, i.e Petersberg tasks, and collective defence.The latter, including mutual security guarantees, would be placed in a defence protocolannexed to the Treaty. Members States would opt in to this Protocol. Thus, certain states,i.e the EU neutrals, would not be required to participate in a Collective Defence of the Unionif they chose not to do so. Both forms of Option C stress that"a drifting apart of the EU andNATO, which would weaken transatlantic security, must be avoided".

28 HC Deb 28 November 1995, c.578w and see Research Paper 95/45, pp.22-2429 Under Article XII of the Brussels Treaty of 1948, signatories may apply to leave the Treaty after 50 years.

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V Simplification of the Treaties

The need to simplify not only the decision-making procedures but also the Treatiesthemselves has been supported by the Community institutions and member states and thesubject raised at successive European Councils. The Council, in its report to the ReflectionGroup,30 pointed to the "impression of complexity" created by the "successive juxtapositionof treaties and amendments to them". The Commission and Court of Justice made similarpoints in their reports31 and the European Parliament made the same point in its Resolutionof 17 May 1995.32 This was also one of the conclusions reached by the Select Committeeon European Legislation in its 24 Report:33

We agree that the Treaties should now be unified and redrafted to achieve clarity andprecision.

A. Council Note to the Reflection Group on the Simplification of the Treaties, 17 October 1995 (SN 513/95)

The Council's Note to the Reflection Group considers how the Treaties might be simplified,consolidated and restructured. The Note refers only to the three Community Treaties and theTreaty on European Union although the proposed simplification would seek to bring togetherthe dozen or so Community Treaties and basic acts totalling over 700 Articles and additionalprotocols into a redrafted, restructured unified instrument. This new treaty would omitobsolete provisions, merge the Treaties governing the three separate Communities (EEC, Coaland Steel, Euratom) and improve the presentation of provisions to make them moreaccessible.

The Council envisages three strands to the operation. The first would reduce the number ofArticles by removing provisions which had lapsed or become obsolete and rewrite others,making them clearer and more readable. The second would consolidate the three Treatiesestablishing the European Communities and other texts where appropriate or merge parts ofthem, particularly where the text is identical. The third would improve the presentation ofprimary legislation by putting the general provisions into one basic treaty or a separate partof this treaty and transferring other provisions to protocols annexed to this Treaty or in asecond part of it.

30 Cm 2866, May 199531 Commission Report para. 90 and ECJ Report para. 2332 paras. 2 and 14(i)33 para 90

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For each strand the Council considers a number of options for achieving simplification whichraised political, practical, legal, ideological and in some cases aesthetic problems. Theoptions are set out as follows:34

A. First Strand: Simplification within each Treaty

Option (a): Removal of lapsed or obsolete provisions

Option (b): Simplification of drafting

Option (c): Limited substantive simplification for greaterclarity

B. Second Strand: Merging/Consolidating all or part of the existing Treaties

Option (a): Merging only the Community Treaties, withoutany adjustment

Option (b): Merging the three Community Treaties withsome limited adjustments

Option (c): Merging the three Community Treaties and theTreaty on European Union, while preserving thecharacteristics of Titles V and VI of the latter

Option (d): Merging the three Community Treaties and theTreaty on European Union, with limitedsubstantive amendments for greater clarity

C. Third Strand: Restructuring the provisions of the Treaties

Option (a): Incorporating the three Community treaties intothe Treaty on European Union, with or withoutrenumbering of the Articles

Option (b): As option (a), with separation of the generalprovisions of the Treaties from other provisions

34 Note, p.22

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Option (c): As option (b), but with the inclusion of theTEU, resulting in a new "Framework Treaty onEuropean Union)", either with a second part orwith) annexed protocols

The Council's preferred option for the first strand of simply removing those Treaty provisionswhich had lapsed or become obsolete without altering the wording of other provisions wouldraise questions as to which provisions had actually lapsed, whether they had lapsedindefinitely or whether the Community might need to make use of them in the future.35

Looking ahead to the 1996 IGC, the Council identifies the inherent risk, already evident fromthe Treaty as amended by the Treaty on European Union, of producing a new treatycontaining old provisions which have been simplified and new ones arising from the IGC.The Council thought that this might cause some constitutional confusion during theratification processes in the member states.36 The proposed solution would be to present newprovisions that made substantive amendments to the Treaty separately. The new version, acombination of these amendments and the simplified Articles, would be added in a separateannex which, following ratification, would become the authentic version of the Treaty.37 Thisprocess would also mean changing some of the familiar Treaty Articles but the Councilfavoured "readability" over sentiment.38 The Note envisages that some fifty Articles wouldbe removed from the EC Treaty alone with further pruning of the other EC Treaties.

For the second strand (merging/consolidating all or part of the existing Treaties), the Councilpreferred the option of merging the three Community Treaties and the TEU, with limitedsubstantive amendments for greater clarity. This would extend the jurisdiction of theEuropean Court of Justice to include the second and third pillars of the TEU, the CFSP andJustice and Home Affairs (JHA). The Council qualified this proposal by suggesting thatrestrictions and specific decision-making procedures might be applied in the areas of theCFSP and JHA. In the Council's view, this option "would offer the greatest advantages interms of understanding and "transparency" of the European Union".39 It would also offer thepossibility "of conferring legal personality on the European Union without interfering withthe institutional peculiarities of the CFSP and JHA areas".40

For the third strand (restructuring the Treaty), the Council favoured incorporating theCommunity Treaties including the TEU into one Treaty on European Union. This would takethe form of a new "Framework Treaty on European Union" containing general provisions,with a second part or a series of old and new protocols annexed to it which would have the

35 Option (a), para. 936 para.1037 para.1038 para.1239 para.3340 para.45

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same legal force as the Treaty itself. This option would preserve the separate treatmentcurrently given to second and third pillar matters in the TEU. The following structure wasproposed:

I Definition of the European Union and its limited legalpersonality (not for CFSP or JHA)

II Objectives and fundamental principles of the Union

III Citizenship of the Union

IV Institutions, rules and general decision-making (includingbudgetary) procedures, legal acts

V Decision-making procedures specific to certain sectors(EMU,CFSP, JHA)

VI Budgetary and judicial controls (specific provisions for CFSP and JHA)

VII Final provisions (accession, revision of the Treaty).

B. Bieber Report on the Simplification of the Treaties, 25 September 1995

The EP also commissioned a report on simplifying the Treaties. The study was headed byDr Roland Bieber, Professor of European law at the University of Lausanne. The Report,Simplification des Traités de l'Union, of 25 September 1995, proposed a saving of 533 Treatyprovisions.41 Bieber arrived at this figure from a study of the primary sources, ie thefounding Treaties. From more than twenty texts, he considered that 15 were of "importancemajeure". Of these, 150 provisions had become obsolete, particularly as a result of thecompletion of transitory periods of application. This would include 52 Articles in the ECTreaty, including Articles 18 - 27 on the setting up of the common customs tariff and Article45 on replacing national market organisations by one of the common organisations. Bieberwould also remove or revise 23 Articles in the Euratom Treaty, 4 Articles in the ECSTTreaty, 5 Articles in four Conventions relating to the EP, Court of Justice and the Economicand Social Committee, 15 Articles in the 1965 Treaty on merging the institutions, all 6Articles in the Single European Act, which would in part be transferred to the EU Treaty, 12partially or totally obsolete protocols annexed to the Treaties, 31 Articles in the ECSCConvention on transitional provisions, 2 Articles of the 1976 Act on Elections to the

41 "Au total une économie de 533 dispositions est proposeé", p.44

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European Parliament, and Article N from the Maastricht Treaty, which will become obsoleteafter the IGC has been convened.

Bieber concluded that a considerable number of provisions are duplicated partially or in fulltwo or three times in the various Treaties, mostly in provisions concerning the institutions.239 Articles in this category could be removed: 90 Articles in the Euratom Treaty, 39 in theECSC Treaty and 110 Articles in Acts concerning the status of the Court of Justice.

The Treaties would be restructured to form a more coherent and simplified "charteconstitutionelle européenne"42 in which provisions would be regrouped in the following areas:

a. fundamental principles

b. fundamental and individual rights

c. relations with the member states

d. relations with third parties and international organisations

e. institutions/procedures

f. principles of material right

g. "technical" constitutional provisions

Bieber distinguishes between a "horizontal transfer", according to which provisions linked insubstance would be regrouped in the same instrument or transferred to another treaty, and a"vertical transfer", whereby provisions would become a different instrument altogether, witheither a superior or inferior status to the original text. Bieber notes, however, that a verticaltransfer would alter the juridical nature of European law itself, turning primary law in theform of the Treaty text into secondary law in the form of legislative instruments. Since theEP had commissioned a report on the purely formal aspects of treaty modification, thisproposal would be beyond the remit of the present study. Bieber therefore suggests a lessradical solution: 144 Articles could be transferred from the body of the Treaty to protocolswhich would have the same legal status as the Treaty itself, leaving 383 constitutionalprovisions in the Treaty. He concludes that the proposed structure would allow provisionswhich were linked ("dispositions connexes") to be grouped together in one instrument, thusreducing the total number of provisions by 533.

42 European Constitutional Charter

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VI Some Views from the Member States

A. Franco-German report on the new stage in building Europe, 11 October 1995

On 11 October 1995, the French daily Le Monde and the German Frankfurter AllgemeineZeitung, published a joint Franco-German position on the next step in building Europe. Thereport was drafted by members of the CDU/CSU, SPD and FDP factions in the GermanBundestag, together with French socialist and other politicians from the Assemblée Nationale.It set out to identify areas where common positions still existed, those where differenceswould continue to exist and the course that the two countries might take together at the IGC.The report considers economic and monetary union, foreign and security policy, internalsecurity and the institutions.

1. EMU

EMU is supported as the means to securing "a balanced, ordered and stability-orientatedEuropean economic, financial and monetary policy" which would "secure the long-term basisfor growth, prosperity and employment". The report proposed that those member stateswhich did not join EMU in 1996 should be encouraged to join as quickly as possible sincethe coordination of monetary policy was essential. With their own relatively strongcurrencies in mind, the paper emphasises the importance not only of fulfilling theconvergence criteria demanded by the Maastricht Treaty but also the stability of exchangerates at the time of transition:

If they do not correspond to the actual purchasing power of the different nationaleconomies by the date of transition to a single currency, the over-valuation of weakcurrencies would be too expensive for the citizens of countries with strong currencies.

2. CFSP

At the time of the Maastricht Treaty negotiations, Chancellor Kohl had emphasised his beliefin the importance of the parallel achievements of economic and monetary union with politicalunion. It appeared some time later that Bonn was abandoning this view to adopt a moreflexible approach involving a "core" of member states which would proceed at their ownpace, leaving a second tier to integrate at a slower pace. The two elements of Europeanintegration are now linked again in the report in the section on foreign and security policy.This is also linked to the need for public approval of further steps towards integration:

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In the final analysis, popular approval of Economic and Monetary Union will dependon the ability of the 1996 Inter-Governmental Conference to achieve parallel politicalprogress.

This parallel political progress would be expressed in concrete achievements in the CFSP, thefight against organised crime and a common asylum and immigration strategy. All three areof particular importance to the German and French Governments since both have had to dealwith terrorist and trafficking crimes originating from outside the Union and both haveamended their immigration and asylum laws in recent years in order to control the numbersof immigrants and asylum-seekers crossing their borders.

The paper takes a wider view, however, proposing a common foreign and security policywhich would represent the spirit of the EU on the world stage and "influence the creationof a new economic and social world order". The CFSP would take time and would requiretaking common actions by qualified majority and the integration of the WEU into the EU "inthe foreseeable future".

3. Internal Security

Third Pillar matters would be brought gradually under Community procedures. Theharmonisation of internal security measures would not be confined to the EU member statesand would not stop at the external borders of the Union:

Together with the EFTAn states as well as the Associated States in Central andEastern Europe and in the European Mediterranean region, we want to create aEuropean Security Area in which EU regulations are applied as fully as possible.

4. Institutions

The paper emphasised the importance of the inter-governmental nature of the EuropeanCouncil and recommended that its president be elected for a three-year term instead of thecurrent six-monthly rotation.

In the Council of Ministers COREPER would be replaced by ministers of European affairs,retaining the six-monthly rotation of the chair. The size of population would be taken intoaccount in qualified majority voting (which "should be applied in general") and unanimitywould be required only for Treaty amendments and decisions on the accession of newmembers.

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In EP elections, MEPs would be elected at regional level except in the very small memberstates with no electoral sub-divisions. The EP would have more powers, including the rightto initiate legislation in cases where the Commission did not do so and involvement in alldecisions leading to Treaty amendments. In addition to its voting powers on EU expenditure,the EP would also approve EU income within the framework of the Council's ceiling. TheEP would also elect the President of the Commission on the recommendation of the EuropeanCouncil and there would be a maximum number of MEPs.

The paper confirmed the Commission's remit and its right to initiate proposals for legislation.The Commission president would select Commissioners from candidates submitted by themember states but the number would depend on the areas of competence rather than thenumber of states.

B. Britain at the IGC

1. British Isolation?

The British Government "does not expect massive change as a result of this IGC",43 a viewapparently shared by others, including the Reflection Group itself. At least six of the memberstates, Austria, Denmark, Finland, France, Ireland and Sweden, are expected to holdreferendums on any new Treaty Articles and this has given rise to some caution in the Groupabout introducing radical reforms. Amendment is likely to be sought, however, in at leasttwo areas in which the British Government holds a minority position: the extension of QMVand new powers for the EP.

The Frankfurter Allgemeine Zeitung, reporting on 29 November on a leaked version of theReflection Group's final report "A Strategy for Europe", draws attention to Britain's isolationin a number of areas of otherwise general agreement. These include the QMV and EP issues,foreign policy and Community competence in justice and home affairs. This is not analtogether surprising revelation as the Government has maintained its own position on thesematters for some time. British minority positions have in the past resulted in specialarrangements and opt-outs such as those secured for the Maastricht Treaty in EMU and theSocial Protocol. There has been some speculation that other member states could prolongdiscussion of important matters until after a British general election, in the belief that aLabour Government would adopt a more conciliatory approach. However, some in theReflection Group are not inclined to let the IGC become hostage to a British election, thedate of which is in any case uncertain.

43 Government response to Scrutiny Committee Twenty-Fourth Report, Cm 3051, 1994-95

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There are signs that Britain's position in some areas will not be as much at odds with herpartners as anticipated. The French resumption of nuclear tests has been seen by somecommentators as underlining the differences in the foreign policies of the member states andthe difficulty of forcing them into a common policy. France's abandonment of the SchengenAgreement to lift border controls also parallels British wariness about some of the problemsof open frontiers. The British view that NATO rather than the WEU is the best guaranteefor European security has appealed to the neutral member states, Austria, Finland, Ireland andSweden. Germany's traditional enthusiasm for economic, monetary and political union hasalso been tempered in recent months by public and parliamentary fears of being thepaymaster in an enlarged and more costly Union, and this has brought the German and BritishGovernments closer on the subject of spending curbs and reform of the Common AgriculturalPolicy. The Franco-German split over the move to a single currency which emerged at anECOFIN meeting on 27 November also parallels the British Government's scepticismregarding the timetable for EMU. The present state of unrest in France also places a questionmark over the French Government's economic strategy in preparation for a single currency.

2. UK Submission on the European Court of Justice, David Davis, September 1995

David Davis, the Foreign Office Minister and UK member of the Reflection Group, submittedto the Group a paper on improving the procedures and efficiency of the European Court ofJustice.44

The paper notes the unanimous support for retaining the functions of the ECJ but notes someworrying trends:

Concerns ... have been expressed about some ECJ judgements on the grounds thatthey have led to significant unforeseen consequences for member states, have beendisproportionate in their effect and have created severe practical problems.

In recent years the UK Government has been found in breach of various EC directivesconcerning equal pay, pension rights and discrimination which have had serious financialconsequences.45 The view among some backbenchers and the public that the Court isusurping national sovereignty has given rise to criticism both inside and outside Parliament.It is difficult to say how much support there is in the EU for UK scepticism regarding ECJrulings, but there was little evidence of support for much of the UK submission amongmembers of the Reflection Group.

44 HINF 95/2259, 1 September 199545 These include Case 262/88 Barber v Guardian Royal Exchange Assurance [1990] ECR 1-1889 and subsequent casessuch as Coloroll, C-200/91; Case C-32/93 Webb v EMO Cargo (UK) Ltd, 14 July 1994.

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Mr Davis puts forward some ideas to meet UK concerns. He proposes limits to the liabilityof member states in damages for the breach of a Treaty obligation. Recalling that theprinciple of state damages for failure to implement had been established by the Francovichcase,46 he suggests that:

a distinction might be drawn between cases of grave and manifest disregard of aCommunity obligation, and instances where a member state has acted in good faith.A Treaty amendment could limit liability in damages to the former.

Mr Davis also proposes limiting the retrospective effect of judgements on a more regularbasis rather than as an exception, in order to avoid disproportionate financial consequencesfor member states. This could be made explicit in the Treaty. He also calls for nationaltime limits to be set to restrict damages claims in cases where a member state has notimplemented a directive properly. At the moment this only applies to cases involving theimplementation of Treaty obligations and regulations and does not apply to directives:

A Treaty amendment could be made clear that national time limits should applyexcept in cases of grave and manifest disregard of a Community obligation.

In a section on practical and procedural options the Minister suggests creating an internalappeals system within the ECJ. He also suggests facilitating "the rapid amendment ofCommunity legislation in cases where the legislature believe that the Court has interpreteda provision in a way not initially intended". Another proposal which would not requireTreaty amendment would be the introduction of "an accelerated procedure for time-sensitivecases ... to minimise uncertainty and practical difficulties". This could be done by amendingthe Court's Rules of Procedure. Delays in the Court's proceedings could be reduced byimproving the ECJ translation service.

VII Negotiations on EU Foreign and Defence Policy

1996 will be a crucial year for the future defence of Europe. On the one hand, theIntergovernmental Conference will review the Common Foreign and Security Policy and theMaastricht arrangements for defence, on the other NATO in Bosnia will attempt to implementand monitor a peace settlement. Since US involvement in Operation Joint Endeavour ispredicated on a strict time limit of one year, the success or failure of NATO intervention onthe ground in the Former Yugoslavia may become clear as the IGC moves towards itsclosing stages.

46 Francovich and Bonifaci v Italy: C-6 9/90 (1991)

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Europe's failure to end the conflict in the Former Yugoslavia has undermined some of themore extravagant aspirations for an independent European foreign policy. Somecommentators have seen Operation Deliberate Force and the USA's role in co-ordinatingrecent international diplomatic and military action in the Balkans as evidence of a continuingrequirement to maintain the preeminence of NATO in European security and as underliningthe contrasting weakness of solely European efforts at mutual defence. It seems that it wasonly when the USA, under the NATO umbrella, decided to force through a policy ofairstrikes against the Bosnian Serbs that the siege of Sarajevo lifted. US realpolitik withregard to Croatia, the Bosnian government and Serbia also helped to push all the parties tothe Bosnian conflict to agree to the Dayton peace agreement. Yet the new US diplomaticdomination in the Balkans has been at the cost not only of bruising Balkan pride but also ofthat of the EU and EU Member States. The EU has contributed some 80 per cent of the UNpeacekeeping force in Bosnia as well as supplying 60 per cent of humanitarian aid.47 TheDayton Agreement is based on three years of negotiations by the EU, the EU and UN andsubsequently the Contact Group. Douglas Hurd has remarked that the Dayton Plan is builton "the shoulders of Vance-Owen".48 Europe, it appears, was able to muster the ingredientsof peace without being able to force a final resolution of the conflict.

A US leadership role in European security may also be unpredictable. In November 1994,the US government abruptly withdrew US forces from participation in enforcing the UN armsembargo against the Former Yugoslavia. A consequence of this decision was that the USAno longer furnished satellite and other intelligence information in respect of the blockade toits allies. This act caused Europe-wide consternation. Satellite intelligence is one area ofdeficiency in European defence co-operation. The US move helped to persuade the WEU toestablish its satellite intelligence centre on a permanent basis in May 1995 and hasencouraged European states to improve their capabilities in the area of satellite intelligence.In the Former Yugoslavia, the USA and EU are also in dispute over the cost of Bosnianreconstruction with the former apparently offering to pay a fifth of the costs of thereconstruction programme whilst the EU is keen for Washington to pay a co-equal third 49

More importantly, if Washington keeps to its timetable of withdrawal of its troops fromBosnia within one year of deployment, and in an election year, this may be required, then itraises the question of what form of peacekeeping force, if any, will replace NATO. It is notbeyond reason that as European UNPROFOR units will transfer to NATO command fromJanuary 1996, they may well remain in Bosnia after January 1997. Such an operation, ifpeace is maintained, might be exactly the form of Petersberg type humanitarian andpeacekeeping mission envisaged for the WEU. Work within the WEU is perhaps intendedto be able to manage and command such an operation.

47 International Herald Tribune, 5 December 199548 The Daily Mail, 23 November 199549 The Independent, 5 December 1995

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European missions in Bosnia have not been without successes. The EU administration ofMostar, with WEU assistance, has made some contribution towards reconciliation betweenCroats and Muslims there. More importantly, the successful integration and joint action ofBritish, French and Dutch troops in the UN Rapid Reaction Force may show what can beachieved on a local level in European defence co-operation. Thus, analysis of the Bosniancrisis may provide evidence both for and against closer European defence co-operation.

Beyond the Former Yugoslavia, the IGC must take notice of other areas of EU externalpolicy. In central and eastern Europe, through moves towards enlargement and joint actions,such as the Stability Pact, the EU has contributed much to the security of the region. In theMediterranean, where southern European states fear potential threats to their security posedby instability in North Africa and the Middle East, particularly those of terrorism and Islamicfundamentalism, the EU may be the only body which can provide the necessary combinationof economic assistance, through direct aid and trade agreements, and diplomatic pressure toproject stability. A new framework for EU relations with twelve Mediterranean partners:Algeria, Cyprus, Egypt, Israel, Jordan, Lebanon, Malta, Morocco, Syria, Tunisia, Turkey andthe Palestinian authority, was established at the Euro-Med Conference, held in Barcelona inNovember 1995.

Although begun before the initiative to strengthen the Union's Mediterranean policy, EUactions in the Middle East process and the Occupied Territories fulfil some its more generalaims. The Middle East peace process is an area for joint action under the CFSP. The EUhas also ready given diplomatic support to Israeli-Palestinian negotiations as well as financialbacking to the new Palestinian authority. In a new joint action, elections in the OccupiedTerritories, to be held in April 1996, are to be supervised by an EU-led international observermission.

Whatever the lessons for European policy makers of EU external actions since Maastricht,the IGC will involve negotiations between Members States in which compromises and trade-offs may be made. In the Reflection Group, there has been broad agreement on two meansof improving the CFSP. Firstly, consensus has been reached on the requirement for betterpreparation of Union external action through the creation of an analysis, forecasting andplanning unit. Secondly, there is also agreement on the establishment of a new post of CFSPfigurehead. The exact nature of these two new arrangements and their relationship with theother institutions is yet to be decided. Disagreement remains over changes to CFSP decision-making procedures where states such as Germany advocate the extension of QMV or the newarrangements such as consensus minus, super qualified majority or possible non-participationin the implementation of a joint action agreed by QMV.

Agreement on the future of the Common Defence Policy may remain elusive. Here, Britainalone, opposes any merger, whatever the timetable, between the EU and the WEU and

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proposes various practical arrangements, joint summits, the synchronization of Presidenciesand Secretariats, operational improvements etc, to improve European defence capabilities.A group of EU Members, particularly the WEU observers, concede eventual merger of EUand WEU. As an intermediate step, they are willing to link the WEU to the EU in asubordinate relationship for some actions, such as crisis management, through, in the main,informal and non-legally binding ways. Another group, led by Germany, the Netherlands,Belgium and Italy, favour a faster pace of merger, possibly before the end of the decade, withthe establishment of a Common Defence Policy, and a Common Defence, using the secondpillar. Thus, whereas it is possible to envisage agreement between the Fifteen on certaindevelopments to the Common Foreign and Security Policy, moves towards a CommonDefence Policy are less definable.

VIII Conclusion

Some have suggested that the Reflection Group did not have enough time to prepare a reportof any consequence and that Mr Westendorp sought the lowest common denominator in mostareas of discussion.50 A senior official who scrutinised the final draft is reported to have saidthat "it is tortuous and confused. It ducks all the major issues and takes us no furtherforward".51 By limiting the scope of the 1996 IGC to Treaty revision only, some criticsbelieve that the Conference will avoid settling some of the more controversial and difficultmatters that will be essential before any future enlargement can take place.

The prospect of enlargement to a Union of 20 within the next decade will provide the IGCwith an impulse to steer a path towards more clarity and simplification, and perhaps also toa more flexible approach which will allow for the diversity that enlargement will inevitablybring. Some of the policies that are not on the IGC agenda are just as important as otherswhich it will tackle, so the IGC will certainly not be the end of the story. Somecommentators have already dubbed the Conference "Maastricht II" and believe that there willundoubtedly be a "Maastricht III" or "IV" in the not too distant future. Whatever the finaloutcome of the 1996 IGC, there will still be much work to be done in areas such as theUnion budget and own resources, reform of the CAP and structural funds, which will be atleast as important in shaping the future of the Union as Treaty revisions agreed at theforthcoming Conference.

VM/TD/JML

50 Economist, 18 November 199551 Independent, 13 November 1995

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Papers available on the same subject:-

European Communities

95/92 The Social Chapter95/80 Gibraltar95/78 Metrication and the sale of goods95/76 Towards the IGC: Enter the Reflection Group95/45 Towards the IGC: Developing a Common Defence Policy

Defence

95/116 The Chemical Weapons Bill [Bill 2 of 1995/96]95/102 "Not peace, but a big step forward": Bosnia in October 199595/101 The United Kingdom and Nuclear Weapons95/69 Bosnia: update and supplementary information95/55 Bosnia and Croatia: the conflict continues

Documents

Towards the IGC: Weighing the Options · Towards the IGC: Weighing the Options Research Paper 95/123 5 December 1995 This paper will look at various reports by the Reflection Group,