Sieglinde Schreiner-Linford, 9
December 1996, e-mail: sieglind@datacomm.iue.it
We were commissioned by the European Parliament to study Certain Rectangular Problems of European Integration. Four elements were identified by Parliament: Hierarchy of Norms, Relative Competences, Decision Making Processes (including Comitology) and Subsidiarity.
One of the principal conclusions to emerge from our study and which cuts across all four elements was that despite the high rhetoric of Maastricht, including the very creation of "European Citizenship", there has been a distinct disempowerment of the individual qua European citizen which, in turn, has contributed to a growing popular disillusionment with, and alienation from, the Union. This, in turn, has spilled over to national political and legal institutions which are increasingly adopting positions which undermine the legitimacy and authority of the Community.
In this synoptic view of the programmatic
aspects of our Study we have picked from the many proposals we advocate the
four most important ones. We suggest that these proposals, because of their
boldness, should be pushed
by Parliament as a "package" - The
Individual Empowerment Package.
We believe that by adopting this package as a distinct and publicly visible component of its input into the IGC as it moves to its decisive phase, Parliament will also be enhancing and sharpening its own profile among European citizens.
The democratic tradition in most Member States is of Representative Democracy. Our elected representatives legislate and govern in our name. If we are unsatisfied we can replace them at election time. Recourse to forms of Direct Democracy - such as referenda -- are exceptional. Given the size of the Union referenda are considered particularly inappropriate.
However, the basic condition of Representative Democracy is, indeed, that at election time the citizens "…can throw the scoundrels out" -- that is replace the Government. This basic feature of Representative Democracy does not exist in the Community and Union. The form of European Governance is - and will remain for considerable time - such that there is no "Government" to throw out. Even dismissing the Commission by Parliament is not the equivalent of throwing the Government out. Further, there is no civic act of the European citizen where he or she can influence directly the outcome of any policy choice facing the Community and Union as citizens can when choosing between parties which offer sharply distinct programmes. Neither elections to the European Parliament nor elections to national Parliaments fulfill this function in Europe. This is among the reasons why turnout to European Parliamentary elections has been traditionally low and why these elections are most commonly seen as a mid-term judgment of the Member State governments rather than a choice on European governance.
We endorse, thus, most strongly some form of direct democracy at least until such time as one could speak of meaningful representative democracy at the European level. Our proposal is for a form of a Legislative Ballot Initiative coinciding with elections to the European Parliament. Our proposal is allow the possibility, when enough signatures are collected in, say, more than five Member States to introduce legislative initiatives to be voted on by citizens when European Elections take place (and, after a period of experimentation possibly at other intervals too.) In addition to voting for their MEPs, the electorate will be able to vote on these legislative initiatives. Results would be binding on the Community Institutions and on Member States. Initiatives would be, naturally, confined to the sphere of application of Community law -- i.e. in areas where the Community Institutions could have legislated themselves. Such legislation could be overturned by a similar procedure or by a particularly onerous legislative Community process. The Commission, Council, Parliament or a National Parliament could refer a proposed initiative to the European Court of Justice to determine - in an expedited procedure -- whether the proposed Ballot initiative is within the Competences of the Community or is in any other way contrary to the Treaty. In areas where the Treaty provides for majority voting the Ballot initiative will be considered as adopted when it wins a majority of votes in the Union as a whole as well as within a majority of Member States. (Other formulae could be explored). Where the Treaty provides for unanimity a majority of voters in the Union would be required as well as winning in all Member States.
Apart from enhancing symbolically and tangibly the voice of individuals qua citizens, this proposal would encourage the formation of true European Parties as well as transnational mobilization of political forces. It would give a much higher European political significance to Elections to the European Parliament. It would represent a first important step, practical and symbolic, to the notion of European Citizenship and Civic Responsibility.
Operationalizing this Proposal would require a Treaty Amendment. So far the IGC has deferred serious discussion of the critical Institutional questions. Parliament may push for this proposal in the second phase of the IGC. If required we could draft the necessary options for the required Treaty amendment.
The most important and, in our view, far reaching proposal to emerge from this Study is probably the most simple one. It does not require a Treaty amendment and can be adopted by an Inter-Institutional Agreement among Commission, Council and Parliament. It could be put in place in phases after a short period of study and experimentation and be fully operational within, we estimate, two to three years. We believe that if adopted and implemented it will, in the medium and long term, have a greater impact on the democratization and transparency of European governance than any other single proposal currently under consideration by the IGC.
Even if it does not require a Treaty amendment we recommend that it be part of the eventual IGC package as a central feature of those aspects designed to empower the individual citizen.
We are proposing that - with few exceptions
- the entire decision-making process of the Community, especially but not only
Comitology - be placed on the Internet.
For convenience we have baptized the proposal: Lexcalibur - The European Public Square.
We should immediately emphasize that what we have in mind is a lot more than simply making certain laws or documents such as the Official Journal more accessible through electronic data bases.
We should equally emphasize that this proposal is without prejudice to the question of confidentiality of process and secrecy of documents. As shall transpire, under our proposal documents or deliberations which are considered too sensitive to be made public at any given time could be shielded behind "fire-walls" and made inaccessible to the general public. Whatever policy of access to documentation is adopted could be implemented on Lexcalibur.
Before we explain the implications, virtues and dangers, of this proposal it would be best to try and describe how it would work.
The key organizational principle would be that each Community decision making project intended to result in the eventual adoption of a Community norms would have a "decisional web site" on the Internet within the general Lexcalibur Home-Page.
The content of each decisional site would be a matter to be decided upon and would, inevitably, differ according to the subject matter. But in principle it would enable (virtual) visitors to the site to
We have a simulation of Lexcalibur to demonstrate it.
There is much technical detail which it is not necessary to describe here. We would want to emphasize that we do not believe that this proposal would increase further the administrative burden of Community Institutions and their administration. After all, already now, within each Institution there are officials responsible for every legislative or regulatory procedure, which take care of the receipt and circulation of documents and their communication, where necessary to other Institutions (and even to the public, on occasion…). In fact, our prediction is that this proposal would eventually not only transform and radically improve the interaction of the public with the European process of governance, but internally improve and facilitate that process itself and make it more transparent to its own actors.
The rationale of this proposal seems to us almost self-evident. The Internet with its capacity both for the pure distribution of a huge amount of information to a large public and a quick and relatively cheap interactive participatory exchange process may provide far reaching improvements to the current lack of accountability and transparency within the Community.
But it is important to emphasize that our vision is not one of "Virtual Government" which will henceforth proceed electronically. The primary locus and mode of governance would and should remain intact: Political Institutions, meetings of elected representative and officials, Parliamentary debates, media reporting - as vigorous and active a Public Square as it is possible to maintain, and a European Civic Society of real human beings.
The huge potential importance of Lexcalibur would be in its Secondary Effect: It would enhance the potential of all actors to play a much more informed, critical and involved role in the Primary Public Square.
The most immediate direct beneficiaries of Euro Governance on the Internet would in fact be the media, interested pressure groups, NGO's and the like. Of course also "ordinary citizens" would have a much more direct mode to interact with their process of government.
This system, by showing information and activity almost in real time, would increase transparency and hence the possibility of monitoring on all levels. National parliaments and the European Parliament will be able to follow the Community process much more closely and control, in the former case, the work of national officials and ministers within the Council and in the latter the work of the other Community institutions. Individual actors - private citizens, companies and interest groups - would have an improved bases for addressing the national governments, parliaments and representatives on the European level.
Providing a greatly improved system of information would, however, only be a first step of a larger project. It would serve as the basis for a system that allows widespread participation in policy-making processes through the posting of comments and the opening of a dialogue between the Community institutions and interested private actors. Such a system obviously needs a clear structure in order to allow a meaningful and effective processing of incoming information for Community institutions. Conceivable would be, for example, a two-tier system, consisting of a forum with limited access for an interactive exchange between Community Institutions and certain private actors and an open forum where all interested actors can participate and discuss Community policies with each other. This would open the unique opportunity for deliberations of citizens and interest groups beyond the traditional frontiers of the nation state, without the burden of high entry costs for the individual actor.
Using the Internet for improving public participation and transparency elegantly captures a whole series of problematic issues: (1) In contrast to the parliamentary process where individual preferences concerning particular issue areas have to be subjected to a broader political process, in a Internet based system as envisaged here the preferences would fully come to bear. (2) Concerns, suggestions, approval or critique can be expressed instantly and specifically. (3) It is an easily accessible system (4) its implementation neither requires a Treaty amendment not excessive financial resources (5) It is a system with utmost transparency. (6)There is arguably no better way of providing a large public with detailed information on a huge variety of issues, without considerable time lags between an action and its perception by the public.
Access to the Internet would, of course, itself become a source of unequal power. But already now that problem is quite acute and the already existing diffusion of the Internet can only improve the current situation. We expect this diffusion to grow so rapidly as to make this problem relatively minimal. Ultimately the net will be more of an equalizer than a differentiator.
Hugely important, in our view, will be the medium and long term impact on the young generation, our children. For this generation, the Internet will be - in many cases already is - as natural a medium as to older generations were radio, television and the press. European Governance on the Net will enable them to experience government at school and at home in ways which are barely imaginable to an older generation for whom this New Age "stuff" is often threatening or, in itself, alien.
As mentioned we foresee administrative advantages also for the working process of the Community institutions themselves: first they could use the system also as a planning, organization and communication device for their inter- and intra-institutional relations. This would lower their transaction costs considerably. Secondly, the distribution of documents could be greatly facilitated and improved. Texts could be changed easily without printing the same document in yet another version again and again.
The idea of using the Internet for improving the legitimacy of the European Union may seem to some revolutionary and in some respects it is.
Therefore its introduction should be organic through a piecemeal process of experiment and re-evaluation but within an overall commitment towards more open and accessible government.
There are dimensions of the new Information Age which have all the scary aspects of a "Brave New World" in which individual and group autonomy and privacy are lost, in which humanity is replaced by 'machinaty' and in which government seems ever more remote and beyond comprehension and grasp - the perfect setting for alienation captured most visibly by atomized individuals sitting in front of their screens and "surfing the net."
Ours is a vision which tries to enhance human sovereignty, demystify technology and place it firmly as servant and not master. The Internet in our vision is to serve as the true starting point for the emergence of a functioning deliberative political community, in other words a European polity cum civic society.
Operationalizing this Proposal: In theory this proposal could be pursued outside the IGC framework. That, in our view, would be a mistake. We would propose a Resolution of the IGC to set up a Wise Man Committee to explore the feasibility and time table to implement an initial experiment in one or two areas of Community governance. Such a Committee could be composed, for example, by the Secretary-General of each of the three principal Institutions (or their representatives) by the head of the Civil Service or Secretary of the Government (or its equivalent) from one or two Member States and one or two outside persons. It would be required to Report and make recommendations for deliberation and approval to coincide with the conclusion of the IGC.
"Rights" have become the cheapest currency in most Institutional discourse on citizenship and legitimacy as if adding rights to the list and adding lists of rights will fundamentally change the position and attitude of European citizens towards the Union. To be sure, there can be improvement by greater specificity of certain prohibitions on discrimination and clarifications in the field of social and economic rights. But it is not in this area that the major problem rests.
The relatively recent decision of the European Court of Justice in Opinion 2/94 has, to all intents and purposes foreclosed the possibility of adhesion of the Community to the European Convention on Human Rights since it is almost certain that some Member States will block a move to accede. The damage is primarily symbolic: It sends the wrong signal, especially on the eve of possible enlargement. In practice the judicial protection of human rights in the Union through the European Court of Justice is, by and large, adequate. So that too is not the major problem.
Finally, it will be odd that yet again a major revision of the Treaty is to take place and yet again the Union will not have managed, if for symbolic reasons only, to adopt its own Code in this respect. No Bill-of-Rights is perfect but Parliament's own Declaration of Fundamental Human Rights adopted by a huge majority in Plenary is respectable and functional. It is disappointing that it is not being vigorously advocated by the very body which adopted it.
It is our view, however, that the principal problem lies not in the content of the rights, nor in their judicial vindication when they come before the courts but in their dissemination and vindication. If you do not know about your rights - judicial protection will not help you. If you do not know about violation, judicial protection will not help you. If you have not got the resources - material, human, intellectual - to pursue your rights, judicial protection will be a chimera. Not new rights, then, but a vigorous policy of Access-to-Justice. Effective Access-to-Justice takes many forms explained in the body of the Study. But it will not happen by itself. It is highly anomalous that the Community has a Commissioner and Directorate General to oversee and enforce Competition Policy, or the Internal Market, but has neither a comprehensive policy of Human Rights nor an organic body whose task it is to see that within the sphere of application of Community law, and only within that sphere, the human rights which form part of the patrimony of the Community and which the Community and its Institutions are bound to uphold, are effectively disseminated and protected. The Community realizes that it needs a Commission DG4 to ensure effective dissemination and implementation of Competition rules. Is that need any less in relation to human rights?
What is required here is a Treaty amendment which would provide the Community with the competences necessary to take those measures necessary to ensure that within the sphere of application of Community law, the human rights which bind all actors operating under Community law are effectively protected. Once this competence is established, the Commission could develop an Access-to-Justice policy and put in place the necessary instruments to make it effective.
The Problem of Competences is, in our view, mostly one of perception. The perception has set in that the boundaries which were meant to circumscribe the areas in which the Community could operate have been irretrievably breached. A prominent European Judge has stated: "There simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community." The reason for the state of affairs are analyzed in depth in the body of the Study.
Few perceptions have been more detrimental to the legitimacy of the Community in the eyes of its citizens. And not only its citizens. Governments and even Courts, for example the German Constitutional Court, have rebelled against the Community constitutional order because, in part, of a profound dissatisfaction on this very issue. One cannot afford to sweep this issue under the carpet. The crisis is already there.
The main problem, then, is not one of moving the boundary lines but of restoring faith in the inviolability of the boundaries between Community and Member State competences.
Any proposal which envisages the creation of a new Institution is doomed in the eyes of some. And yet we propose the creation of a Constitutional Council for the Community, modeled in some ways on its French namesake. The Constitutional Council would have jurisdiction only over issues of competences (including subsidiarity) and would, like its French cousin, decide cases submitted to it after a law was adopted but before coming into force. It could be seized by any Commission, Council, any Member State or by the European Parliament acting on a Majority of its Members. We think that serious consideration should be given to allowing Member State Parliaments to bring cases before the Constitutional Council.
The composition of the Council is the key to its legitimacy. Its President would be the President of the European Court of Justice and its Members would be sitting members of the constitutional courts or their equivalents in the Member States. Within the European Constitutional Council no single Member State would have a veto power. All its decisions would be by majority.
The composition of the European Constitutional Council would, we believe, help restore confidence in the ability to have effective policing of the boundaries as well as underscore that the question of competences is fundamentally also one of national constitutional norms but still subject to a binding and uniform solution by a Union Institution
We know that this proposal might be taken as an assault on the integrity of the European Court of Justice. That attitude would, in our view, be mistaken. The question of competences has become so politicized that the European Court of Justice should welcome having this hot potato removed from its plate by an ex-ante decision of that other body with a jurisdiction limited to that preliminary issue.
When the questions of legitimacy and citizenship are discussed in the IGC context a common sentiment repeatedly expressed has been the need to strengthen the citizen's sense of belonging to the Union. We have reversed that sensibility. The proposals for Individual Empowerment are designed to make concrete and symbolic steps to strengthening the sense of European citizens that it is the Union which belongs to them.
Certain Rectangular Problems of European Integration
We were commissioned by the European Parliament to study Certain Rectangular Problems of European Integration. Four elements were identified by Parliament: Hierarchy of Norms, Relative Competences, Decision Making Processes (including Comitology) and Subsidiarity.
We understood the very idea of the Rectangle as inviting a focus on the connections or relationships among the four elements each of which is understood relatively well on its own and needs little elaboration and to search for a certain balance among the four. For example, the thrust of our study of Competences and Subsidiarity is in relating these to problems of legitimacy and then connecting the discussion to decision making.
In studying these connections and relationships we employed a basic "Parliamentary" sensitivity so that this study could be part of an overall Strategy for Enhancing Democracy. Parliament can and does have positions on all aspects of governance but has a special sensibility to the paradigm of democracy: Legitimacy, Representation, Transparency, Fairness and the like. Of the many perspectives that could be adopted we chose thus The Empowerment of the European Citizen as the key prism through which to examine the Rectangular problems.
We do not restrict our reflections exclusively to issues which can be translated into Treaty Revision. The IGC can be an occasion for many enhancements which do not actually require a Treaty Amendment. The IGC will be judged by the citizens of Europe by results - not form.
In this Executive Summary we focus, primarily, on the programmatic aspects. However, the specific gravity of this Study does not rest only or even primarily with its programmatic dimension, important as this may be. It rests, instead, with a reconsideration of some of the most fundamental questions which under-grid the policy choices. The executive summary cannot be a substitute for the entire study.
Finally, should Parliament wish to pursue any of the proposals, we would be available rapidly to prepare the necessary drafts of Treaty amendment.
The discourse of democracy in the European Community - and strategies for its enhancement, presuppose the existence of a polity. The Three Pillar structure of the European Union of which the Community is but one pillar dominates most thinking. The typical approach taken towards Pillars II and III is not that they are not democratic, but that they are a more primitive form of European Integration and that the principal strategy in relation to them should be one of eventual Communautarisation. The approach we are commending in this study leapfrogs the theology of politically classifying the Union and also leaves aside the Three Pillar debate. From the perspective of power -- its exercise, control and accountability -- we prefer to speak not of three pillars but of three modes of governance: International (or Intergovernmental), Supranational and Infranational. In this way we identify in the Study the problems of governance specific to each of these modes.
The Inter-Supra-Infra model is advocated as an alternative prism through which to re-assess the problems of governance at the European level. No increase in the powers of the European Parliament alone could fully address the democratic deficiencies of European governance, especially in relation to intergovernmental and infranational modes of governance. Neither would full Communautarisation.
Historically, Parliamentary success has resulted from both a maximization of its tangible political-legal muscle as well as from highly visible, symbolic acts.
We are advocating a double strategy. Alongside Parliament's input into the formal Treaty amendment Process, it should, simultaneously, be developing and articulating a Counter-Voice, reflective of its identity to be ready and published before or immediately after the ratification of the new Treaty. This could take the shape of a Charter on European Democracy (or a Charter on Democracy in the European Union) which would succinctly and in accessible language consolidate the essential Parliamentary positions on a People Europe. Such a move would seek to achieve three aims: A. It would provide a permanent yardstick against which to judge progress in the Union in this area including the results, whatever they may be of the 96 IGC. It would help differentiate Parliament from the other Institutions and articulate its own identity. It would also help to privilege the issue of Democracy from all other issues which, appropriately, are on the Parliamentary agenda. C. It would clarify unequivocally the responsibilities of other Institutions, including national Parliaments, in ensuring transparency and accountability of the political process.
Usually the issue of "Hierarchy of Norms" in Community discourse refers to the proposals, articulated already in the 1984 Draft Treaty for European Union, for a more "rational" internal hierarchical organization of Community norms. One typical proposal, adopted in the defunct EP Draft Constitution of the European Union, would re-organize the "acts" of the Union in an hierarchy comprising of Constitutional Law, Organic Laws (regulating in particular the composition, tasks or activities of the Institutions and Organs of the Union) and ordinary Laws. In addition, Institutions would be empowered, under the Laws of the Union, to adopt Implementing Regulations and Individual Decisions. We characterize this dimension of the "Hierarchy of Norms" debate as Internal.
External Hierarchy concerns not the relationship among internal Community norms but the relationship between Community norms and Member State norms. In theory and in practice this issue seemed to have been resolved decades ago: The European Court of Justice in its grand "constitutionalizing" decisions in the 60s announced the doctrine of Supremacy which established a clear hierarchy between Community norms and conflicting Member State norms. The former were "supreme" to the latter.
This indispensable External Hierarchy, long considered a foundational asset of the acquis communautaire, has been coming under direct and indirect challenge. Such a challenge, though disguised, is to be found in decisions of the German Constitutional Court and the Belgian Cour d'Arbitrage There are already decisions of lower courts in Germany which are challenging the authority and superior hierarchy of Community norms. This trend may continue and is exacerbated by the conduct of certain Governments. It has been raised, more openly than ever before from certain political quarters in certain Member States.
The problems with the External Hierarchy are fundamental and pose a far greater threat to the future of the Community and Union than the issue of Internal Hierarchy.
Our study links this issue to a growing legitimacy crisis which, in part, derives from a perceived lack of authority of the Union to impose such an authority. This, in turn, is linked in our study to the week position of the individual as Citizen of the Union.
This study finds that the current discourse of citizenship trivializes the notion.
Citizenship and Rights (usually fundamental human rights) are invariably thrown together in the IGC 96 debate. This is particularly characteristic of the approach adopted so far by Parliament. We consider this conflation as part of the problem. Almost uniformly in every single Report and Resolution, official and unofficial, the same phraseology is employed when the issue of citizenship and rights is discussed: The problem is defined as alienation and disaffection towards the European construct by individuals. The medicine is European citizenship. What is the content of this medicine? Rights, more rights, better rights, all in the hope of bringing the Citizen "...closer to the Union." On what basis is the claim made, again and again, that rights will make people closer to the Union? Human rights have a place in the discourse of citizenship, even an important place to which we shall allude. But given how thing stands, developing political means of control is more central to European citizenship than piling on new human rights.
-- As to the specificity of citizenship provisions, the Powers-that-be must accept
That European Citizenship has a grave and symbolic character in the vocabulary of political discourse and cannot be treated as some cheap public relations artifact. The public will not be fooled.
That "padding" the concept is probably worse than doing little and it is better to move on this concept with great deliberation, with few but strategic and symbolically important constructs and with considerable patience.
That, likewise, creating unrealistic expectations is worse to the European construct than an organic evolution.
Every person holding the nationality of a Member State shall be a citizen of the Union. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
This issue is, of course, fundamental to the authority of Community norms and to the preservation of the External Hierarchy of Norms. The discourse about it too has, in our view, suffered from a surfeit of rhetoric and not sufficient attention to what we consider are the true issues.
Reviving its 1978 initiative the Commission has recently re-proposed the accession of the Community to the European Convention on Human Rights. Since the Court, erroneously we believe (though politically convenient to some) has found that the Community has no competence under the Treaty to accede to the Convention. The issue, then, has been put squarely on the agenda of the IGC.
The issue which the IGC has to face then is the decision in principle whether accession is desirable and/or necessary. For the most part, the judicial protection afforded by the European Court of Justice meets or exceed Strasbourg standards and there is no compelling case for accession on protection grounds. The main advantage which would accrue to the Community would be the symbolism inherent in subjecting even the European Court itself to a measure of scrutiny by an outside body. It would also be esthetic. How can one preach to all the new East European states the virtues of the ECHR and not be a Member oneself (a little bit like the democracy story: Democracy is a condition for accession to the EU, but the EU suffers from a perennial Democratic Deficit itself). Accession will take a long time and will require modification of the ECHR and ratification of all its Members. Still - a formal request of the Union to adhere would be symbolically important especially in view of Enlargement.
Should the IGC adopt such a written catalogue of rights? And what if the Community commits itself to Accession to the ECHR? We would be concerned if this argument were raised as an excuse not to have an autonomous Community catalogue. We think it would be unsatisfactory if by default the ECHR became the Community's catalogue.
The big problem, then, would be the content of such a catalogue. We exclude the option of the IGC drafting a catalogue de novo. All comparative experience suggests that such an exercise takes years. We would not wish, after all, the Community catalogue to look like the TEU chapter on Citizenship!
Two "realistic" options seem to be open to the IGC: Either inserting an amendment committing the Community, with a fixed deadline, to the drafting and adoption of a catalogue. The drawback of this would be year another delay and the fact that if a catalog were adopted outside an IGC framework, it could not have the status of the Treaty itself and could too easily be amended by the Community legislator. Or, adopt, with modifications an existing, off the shelf, catalogue. The most promising in this respect appears to be the Declaration of Human Rights of the European Parliament. Parliament should stand behind its own Resolutions.
The common theme which brings together the issue of Accession, Adoption and the clamor for new rights, is a an emphasis on Judicial Protection. Implicit in this discussion is the assumption that provided the normative content and the Judicial protection thereof be sufficiently wide in its catchment (capturing all classical and new socio-economic rights); sufficiently high (protecting them at an adequate level); and sufficiently clear (affording the individual, and the legislator, the ability to know what rights are protected), the main problems of human rights are essentially solved. This, we argue in the Study is erroneous.
The normative-judicial model must be complemented by an Access-to-Justice approach which insists on effective vindication over and above the normative content and judicial enforcement.
What we are proposing therefore is that the Treaty be amended to include among Community Policies(!) a new Title: Human Rights. It could possibly be Title I (which would replace symbolically the current Title 1 - Free Movement of Goods). The content of this Title may include a Community catalogue of human rights, though, if a Catalogue is adopted it may be better to position it at the beginning as part of the Foundations of the Treaty. But the centerpiece of the new Title should, in any event, include the basics of a Community (and Union) Human Rights policy as we find in other Titles such as the Environment.
Any such Treaty Mandate should emphasize that the policy is to be operative In the Field of Community Law so that there can be a reasonable demarcation of the reach of such a Community policy into Member State activities. The goals of such a policy would not be to place new restrictions on, or create new obligations for, the Member States but to be confined to human rights in the sphere of application of Community law. In the Study we provide detailed suggestion of the goals and activities of a Community human rights policy.
Most important would be a commitment to a Policy of Human Rights - limited to the sphere of application of Community law - which would enable the Community and Union to narrow or close the Access-to-Justice gap in the current architecture of Rights.
The classical discussion of internal hierarchy has two interconnected dimensions - Constitutional and Institutional. The first is concerned with the per se need to rationalize the current hierarchy of norms within the Community legal order. The second is concerned with an alleged rationalization of the decisional process.
Our view is that the existing hierarchy as well as the Article 189 classification of Acts are highly irrational and could, functionally, benefit from decisive revision.
We also believe that Article 189 has clearly outlived its classificatory utility. For example, the highly artificial distinctions drawn -- in relation to the direct effect of norms -- between Regulations and Directives have become a source of arbitrary discrimination among the subjects of Community law. The policy objectives which the distinction between Regulations and Directives sought to achieve can be better accomplished by, say, "framework laws" which would define objectives and set targets for Community Institutions and Member States and might even specify certain legal results - such as automatic internal effect - if Institutions or States fail to implement them.
The proposal, adopted in the defunct EP Draft Constitution of the European Union, would re-organize the "acts" of the Union in an hierarchy comprising of Constitutional Law, Organic Laws (regulating in particular the composition, tasks or activities of the Institutions and Organs of the Union) and ordinary Laws. Ordinary laws could be of the "framework variety."
In addition, Institutions would be empowered, under the Laws of the Union, to adopt Implementing Regulations and Individual Decisions.
There can be many variations on this basic classificatory regime.
The deepest controversy concerns the divide between laws and implementing and executing measures. The direction of most proposals is essentially to assign those functions to the Commission with various levels of involvement and control by Parliament and Council.
But there is another dimension to the debate which, in our view, is too often neglected. Whatever the allocation of power between Council, Commission and Parliament in the Implementation.
The most significant "constant" we could find across the Comitology board was the emergence of Networks the interaction of which describes and differentiates among Committees better than any formal description. The actors in the networks would be not "The" Commission, but Commission officials, not "The" Government of a Member State but national civil servants, and then a wide variety of "lobbyists" and interest groups.
The first problem is one of transparency which goes far deeper than confidentiality or otherwise of documents. You have to know 'what's going on' in order to know what documents to request.
Secondly, there seems to be week normativity of the process. What is troubling, and what should, in our view, be the concern of Parliament is the unregulated nature of this world of regulators.
The most important and, in our view, far reaching proposal to emerge from this Study is probably the most simple one. It probably does not require a Treaty amendment and can be adopted by an Inter-Institutional Agreement among Commission, Council and Parliament. It could be put in place in phases after a short period of study and experimentation and be fully operational within, we estimate, two to three years. We believe that if adopted and implemented it will, in the medium and long term, have a greater impact on the democratization and transparency of European governance than any other single proposal currently under consideration by the IGC.
Even if it does not require a Treaty amendment we recommend that it be part of the eventual IGC package as a central feature of those aspects designed to empower the individual citizen.
We are proposing that - with few exceptions - the entire decision-making process of the Community, especially but not only Comitology - be placed on the Internet.
For convenience we have baptized the proposal: Lexcalibur - The European Public Square.
We should immediately emphasize that what we have in mind is a lot more than simply making certain laws or documents such as the Official Journal more accessible through electronic data bases.
We should equally emphasize that this proposal is without prejudice to the question of confidentiality of process and secrecy of documents. As shall transpire, under our proposal documents or deliberations which are considered too sensitive to be made public at any given time could be shielded behind "fire-walls" and made inaccessible to the general public. Whatever policy of access to documentation is adopted could be implemented on Lexcalibur.
The approach we take in this section of our Study was not to try and come up with the optimal list or formula for dividing competences between the Community and Union and its Member States. From the Draft Treaty onwards such lists and formulae exist galore on which we report in the associated Study on Competenes.
Instead, our approach is "phenomenological" - i.e. we try and understand how the issue of competences "plays out" in a polity such as the Community. What is the nexus between it and other governance structures and processes, and finally, to explore what can be done to try and anchor certain competences if that is what the political process wishes.
One major underlying dilemma of competences is the coexistence of two world views which in a certain sense are irreconcilable.
For one world view division of competences is functional, a matter of allocating the "best", "most efficient" "most rational" level of governance to the appropriate subject matter. Subsidiarity can be read as giving expression precisely to this view: It starts from a presumption that decisions should be as close as possible to those affected by them; but if better, more efficient, outcomes can be assured at higher levels of governance, that would not only be a condition for taking those decisions at that level but also a justification. The classical example is trans-boundary pollution: Since no one state can tackle the problem alone, it may, and should, be tackled at the transnational level.
The other world view is essentialist rather than functional. Boundaries between jurisdiction are considered as an expression of "inviolable" values. We can characterize this approach - distinct from the above version of subsidiarity - as one of Fundamental Boundaries. Fundamental Boundaries are like fundamental Rights. Everybody is in favour except when they get in the way of one's pet project. The appeal of fundamental boundaries rests in two parallel roots. First as an expression of a vision of humanity which vests the deepest values in individual communities existing within larger polities which, thus, may not be transgressed. Smaller social units can suffer parallel oppression to individuals by stronger societal forces and, thus, must be protected. The second appeal lies in the simple fact that fundamental boundaries help prevent the aggregation of power in one level of government. It is thought that there is a per se value in preventing that type of aggregation.
The attempts to reconcile the functional with the essential becomes a search for legitimation. This legitimation can be pursued by a strategy which will combine different approaches:
1. There can be an attempt to draw fundamental boundaries around some core Statal functions. But it would be very difficult without doing serious violence to, say, the Internal Market to make those boundaries truly inviolable.
2. The nexus between decision making and competences does not only explain the emergence of the present crisis of competences. But it does most definitely suggest that we think that there is a nexus between these two concepts and that to the extent that the Community and Union maintain differentiated decision making, "heavy" decisional procedures can help compensate for jurisdictional flexibility.
3. Finally, since inevitably the Community and Union will continue to occupy major fields of activity where the drawing of fundamental boundaries is inconceivable and where decisional heaviness would be dysfunctional, a lot will depend on a careful exercise of restraint in interpreting the functional guidelines provided in both the first paragraph and the second and third paragraphs of Article 3b. Courts can not replace the legislator in micro-managing the decisional delicacy of Subsidiarity. But credible Judicial Review can help restore confidence - among national parliaments for example -- that the Community legislative process is under control also in this area. Indeed, we would give a very sympathetic consideration to the idea of empowering national Parliaments to bring cases before the European Court of Justice on the grounds of violating the jurisdictional limits of the Union.
For reasons to which we alluded and which are developed further in the associate Study we do not think that a solution to this problem can be found by a simple drawing up of new list of competences for the Community. Instead, we believe that long term solution can only take place by a change of ethos. Institutions can play a role in this.
Certain Rectangular Problems of European Integration
We were commissioned by the European Parliament to study Certain Rectangular Problems of European Integration. Four elements were identified by Parliament: Hierarchy of Norms, Relative Competences, Decision Making Processes (including Comitology) and Subsidiarity.
Each of these elements, taken on its own, has been endlessly studied and discussed for years if not for decades. Hierarchy of Norms have been on the Community agenda since, at least, the European Parliament's Draft Treaty for European Union. They featured in some Reports of the European Parliament (1991 Bourlanges Report) and subsequently were a central part of Parliament's Draft Constitution Project. In the run-up to Maastricht this topic was the subject of an Italian Memorandum and became the subject of Declaration 16 of the TEU. The Decision Making Process of the Community (including Comitology), the relative Competences of the Union and Subsidiarity are too topics which received, respectively, very extensive treatment both in the political process and academic commentary.
The purpose of this Study is not to add yet another analysis of each of these four elements. That, clearly, was not the interest of Parliament in commissioning a study on "Rectangular Problems".
Likewise it is not the purpose of this Study to add yet another "Think Tank" Report with proposals for the Agenda and Content of the Treaty Revision exercise as they relate to these four elements. Here, too, practically since Maastricht, there has been a veritable industry of Seminars, Conferences, Workshops of numerous institutions (usually ones that have the word "Europe" in their title) resulting in a stream of proposals for the IGC which deal, among other issues, with these classic four elements. There are already books (!) summarizing all these proposals.
What, then, should the reader expect in, and of, this Study?
We understood the Parliamentary invitation to deal with certain "rectangular" problems in two principal ways.
First, we understood the very idea of the Rectangle as inviting a focus on the connections or relationships among the four elements each of which is understood relatively well on its own and needs little elaboration. For example, the thrust of our study of Competences and Subsidiarity is in relating these to problems of legitimacy and then connecting the discussion to decision making.
Second, the rectangle is made up of structural, rather than substantive (material) elements, of the Union. This we take as an invitation to focus on questions of system and governance of the polity, rather than on the material content of Community and Union policies. Of course the concept of Governance is vast. We thus employed a basic "Parliamentary" sensitivity so that this study could be part of an overall Strategy for Enhancing Democracy. The democratic reflex provides a prism, or a sieve, through which various problems of governance will be put. Traditionally, the Commission has been thought of as having the role of Guardian of the Treaties. This nice appellation is becomingly increasingly meaningless. Like other tasks of governance, the Guardianship of the Treaty is, de facto and de jure, something to be shared by the different Institutions each contributing its own sensibilities. Parliament can and does have positions on all aspects of governance but has a special sensibility to the paradigm of democracy: Legitimacy, Representation, Transparency, Fairness and the like. This study perceives the function and role of Parliament in the periodic discussions on the future of the Community in the broadest terms: If one thinks of the key players in the IGC - principally Governments (the executive branch) of the Member States and the Commission - there is an in-built structural imbalance in the Treaty Revision process towards the sensibilities of Governments and of efficient Governance. We take with utmost seriousness, and not as mere platitudes, the need for a Parliamentary voice which would be particularly sensitive to the individual rather than the State, to democracy rather than bureaucracy, to the human and the humane rather than to technocracy. This study aims, inter alia, to enhance Parliamentary sensitivity in this regard and to help it articulate its distinct voice in the process and beyond. For example, in discussing, say, Hierarchy of Norms we see connections and find linkages which have not usually been explored in this context such as to European Citizenship and Human Rights. And in discussing Citizenship and Human rights we do not shirk from a devastating criticism of the consumerist approach prevalent in the current discussion, including Parliament itself.
Though this is a Study of "Certain Rectangular Problems" and not a Think Tank Report, it was, of course, commissioned against the backdrop of the IGC. Our perception of the IGC is more than a mere review of Maastricht designed to lead to some Treaty amendments. The IGC is conceived in this Study as an occasion for deep and longer term reflection on some of the fundamental choices of European Integration related to Parliament's "rectangle". This has shaped the programmatic dimension of this Study.
First, we do not restrict our reflections exclusively to issues which can be translated into Treaty Revision. Since our principal perspective is to provide building blocks for a Strategy for Enhancing Democracy, we discuss things which should be part of the debate - and which, in our view, Parliament is particularly well positioned to advance. For example, most discussions of Comitology are concerned with the relative allocation of power between Commission and Council/Member States. Our concern in this study is focused not only on good government but also on "fairness" and the unequal distribution of influence and access which the Comitology structure creates among different interests in the Union and which would persist even if Parliament's wishes for the role of Commission (and Parliament itself!) were fully accepted. But the remedy to this situation is not, necessarily or fully, in Treaty revision. The adoption of a Good Government Charter, or possibly a codification of certain procedural aspects of European administrative procedures need not require Treaty revision.
Second, there is a tendency, evident on previous occasions of Treaty revision, for the Community Institutions - including the European Parliament - to enter into a corporatist and clientalistic mode of thinking whereby the preservation overriding consideration in devising Institutional strategy for the Treaty Revision process. The European Parliament may have more reason and justification for such an approach given the long lasting negative imbalance in its power relative to other Community and Union Institutions. Our perception of this Role of Parliament leads us in another direction. If we consider, again, the enhancement of democracy as a code for the overall sensibility of the Study, we do not abstain from suggesting that Parliament could articulate strong positions even when, in some aspects this does not necessarily lead to a demand for an increase in its powers and/or functions and might even shift, in some areas, attention away from it.
In commissioning this study, Parliament has chosen to turn to the heart of the Ivory Tower. Certain consequences flow from this choice too. We do not shirk at all from making many programmatic and concrete proposals. The delicate question of deciding which of our proposals, if any, is desirable and "realistic" in the current climate we leave to our readers. Experience teaches us that: i. Different actors have very different notions of what is or is not realistic; ii. That in the history of the Community just about all important steps were considered at first as "unrealistic" (Who would have predicted as realistic the eventual decision of the SEA Intergovernmental Conference to opt for restoring or introducing majority voting in Council in so many areas?) iii. That Parliament has had some major successes in making proposals which were unrealistic at the time they were made but which had the double effect of setting an agenda and shifting the center of the debate. Part of our proposals will be in the nature of throwing ideas ("What if...") and allowing the real policy makers (not, us, the pseudo variety), to pick up those which they think promising.
But it would be missing a central purpose of this Study, tempting as it may be in the context of a pressing IGC agenda, to turn to its programmatic parts and to look there for its value. What academics are supposedly best at is in articulating the deeper context of a an issue and a problem, which politicians and their officials often have not the time, training or inclination to do thus giving them a new basis or even inspiration to come up with better policies. The specific gravity of this Study does not rest with its programmatic dimension, important as this may be. It rests, instead, with a reconsideration of some of the most fundamental questions which under-grid the policy choices. We are interested in understanding the physics of the Atom, not only in building (or pulling down) nuclear power stations. Our claim is that it is in this foundational quest that we can make our best contribution and longest lasting contribution to Parliament.
The Study will be found provocative in many of its aspects - it is not meant to generate consensus but to provoke reflection, discussion and deliberation. We have also, very deliberately, eschewed the traditional "scientific" dry style of a "Study" and have preferred to be conversational, direct and engaged with the content. Values are an integral part of the Rectangular Problems and we thought it would be dishonest to try and hide these behind scientific jargon. Where we have a preference it is presented up-front.
The page limit imposed by Parliament, namely a study of 60 pages, constituted a constraint. Bluntly, the breadth and depth of what we were requested to study could not, without an appalling measure of superficiality, be treated adequately in such a limited space. At the same time we understood the practical exigencies of our interlocutors who do not live in the Ivory Tower. Most ideas are presented in abbreviated form only. We have, however, appended many annexes to this study which the reader can consult to deepen the various points in the Study proper. We also invite the reader to consult the "Sister Study" on the Division of Competences between the EU and Member States . The discussion of competences is distilled from that Study. In making choices we privileged those aspects where we thought we were making an original contribution or bringing to bear some new perspective and minimized treatment of issues which have already been ventilated widely in public discourse.
We regard the Study as a resource and ongoing exercise in reflection. MEPs and European Parliament officials are welcome to address us not only for clarification, more information and the like but for an ongoing dialogue based on the concepts and notions suggested in the Study. We accept this commitment for the duration of the IGC.
In its layout the Study follows rather faithfully the sequence of ideas presented at the Oral Presentation before the Institutional Affairs Committee of the European Parliament.
Investigating the linkages between and among Community Hierarchy of Norms, Decision Making, Competences and Subsidiarity and exploring the implications of such linkages for the enhancement of democracy, broadly understood, can only take place in the context of a more general understanding of the European system.
The preoccupation with European democracy should not make us think that the Member States are without problem. Also within our Member States there is ample room to enhance the democratic processes of government. But with very few exceptions it is thought that the basic structures of national democratic governance are in place and are sound.
This, it is generally acknowledged, is not the case with the European Union and Community. There is a widely shared view, practically "received knowledge", that the Union and Community still suffer from substantial and structural democratic deficiencies which require commensurate structural changes in Union and Community governance. The European Parliament has been, appropriately, at the forefront of those calling for such changes.
Let us first outline what we consider the typical account of democratic deficiencies in the Community. Then we shall suggest our alternative construct for viewing Community and Union governance which should enable both a broader and deeper understanding of the democratic dilemma.
We propose to call this typical version as "The Standard Version."
European Integration has seen many, and increasingly important, government functions transferred to "Brussels", brought within the exclusive or concurrent responsibility of the Community and Union. This is problematic, according to the "Standard Version" in a variety of ways.
Though the formal political boundaries of the State have remained intact, in the areas of transfer of responsibility to the Union the functional political boundaries of the polity have been effectively re-drawn. If critical public policy choices about, say, international trade, or environmental protection, or consumer protection, or immigration come exclusively or predominantly within Community responsibility, for those matters the locus of decision-making is no longer the State but the Union. Even if the Union were to replicate in its system of governance the very same institutional set-up found in its constituent states, there would be a diminution in the specific gravity, in the political weight, in the level of control of each individual within the redrawn political boundaries. That is, arguendo, an inevitable result from enlarging the membership of the functional polity (when a company issues new voting shares, the value of each share is reduced) and from adding a tier of government thereby distancing it further from its ultimate subjects in whose name and for whom democratic government is supposed to operate. If a label is needed, call this Inverted Regionalism. All the real and supposed virtues of regionalism are here inverted.
Inverted Regionalism does not simply diminish democracy in the sense of individual disempowerment, it also fuels the separate and distinct phenomenon of de-legitimation. Democracy and legitimacy are not co-terminus. One knows from the past of polities with arguably democratic structure and process which enjoyed shaky political legitimacy and were replaced, democratically, with dictatorships. One knows from the past and present of polities with egregiously undemocratic governmental structure and process which, nonetheless, enjoyed or enjoy high levels of legitimacy. Inverted Regionalism, to the extent, that it diminishes democracy in the sense outlined above or to the extent that it is thought to have that effect, will, to a greater or lesser extent, undermine the legitimacy of the Union.
The perceived pernicious effect of Inverted Regionalism and its delegitimation effect will be/are enhanced by three factors:
The reach of the Community or Union into areas which are, or are thought to be, classical symbolic "State" functions in relation to which "Foreigners" should not be telling "Us" (French, or Danes, or Irish etc.) how to run our lives. These areas, socially constructed and culturally bound, are not fixed. They range from the ridiculous (the British Pint) to the sublime (the right-to-life of the Irish abortion saga).
The reach of the Community or Union into areas which are, or are thought to be, matters left to individuals or local communities and in relation to which "Government" should not be telling "Us" (the people) how to run their lives.
The perception, whether or not rooted in reality, that there is no effective limit and/or check on the ability of the Community or Union to reach into areas previously thought to be the preserve of the state or of the individual.
Inverted Regionalism is only one feature of the alleged democratic malaise of European Integration. We wrote above: "Even if the Union were to replicate in its system of governance the very same institutional set-up found in its constituent states, there would be a diminution in the specific gravity, in the political weight, in the level of control of each individual within the redrawn political boundaries." But, of course, the Union does not replicate domestic democratic arrangements.
A feature of the democratic process within the Member States, with many variations of course, is that government, the executive branch, is, at least formally, subject to parliamentary accountability. In particular, when policy requires legislation, parliamentary approval is needed. National parliaments, apart from exercising these "power functions," also fulfill a "public forum" function described variously as information, communication, legitimation et cetera. The argument is that Community and Union governance and Community institutions have a perverse effect on these principal democratic processes within the Member States and within the Union itself.
Community and Union governance pervert the balance between executive and legislative organs of government of the State. The Member State executive branch, Government Ministers, are reconstituted in the Community as the principal legislative organ with, as noted above, an ever widening jurisdiction over increasing areas of public policy. The volume, complexity and timing of the Community decisional process makes national parliamentary control, especially in large Member States, more an illusion than a reality. In a majority decision environment, the power of national parliaments to affect outcomes in the Council of Ministers is further reduced. The European Parliament, it is often argued, does not offer an effective substitution. Even after Maastricht the powers of the European Parliament in the legislative process leave formal and formidable gaps in parliamentary control. On this reading, Union governance results in a net empowerment of the executive branch of the States.
The European Parliament is debilitated not only by its formal absence of certain powers but also by its structural remoteness. The technical ability of MEPs to link and represent actual constituents to the Community process is seriously compromised in the larger Member States by simple reasons of size. Its abstract representation function of "the people" -- its public forum function -- is also compromised, by a combination of its ineffective powers (the real decisions do not happen there), by its mode of operation (time and place), by its language "problem", by the difficulty (and disinterest) of media coverage.
It is evocative that over the years one has seen a gradual increase in the formal powers of the European Parliament and a decrease in the turn-out to European elections. And when they turn out, these elections are dominated by a national political agenda, a mid-term signal to the national party in power. This is, an evocative fact too, the opposite of American politics where State elections are frequently a mid-term signal to the central federal government. The non-emergence of true trans-European political parties is another expression of the phenomenon. Critically, there is no real sense in which the European political process allows the electorate "to throw the scoundrels out", to take what is often the only ultimate power left to the people which is to replace one set of "governors" by another. In its present state, no one who votes in the European elections has a strong sense at all of affecting critical policy choices at the European level and certainly not of confirming or rejecting European governance.
Community governance might have a distorting effect also if one takes a neo-corporatist view of the European polity. Under this view, government -- both executive and legislative branches -- do not monopolize policy-making and are but actors, important actors, in a broader arena involving public and private parties. The importance of a parliament under this model is to give voice and power to diffuse and fragmented interests whose principal political clout derives from a combination of their electoral power and the re-election drive of politicians. Other actors, such as, say, big industry or organized labour, whose "membership" is far less diffuse and fragmented, exercise influence through different channels and by different means such as political contributions, control of party organization, and direct lobbying of the administration. When policy areas are transferred to Europe there will be a per-se weakening effect on diffuse and fragmented national interests deriving from the greater difficulty they will experience in organizing themselves at the transnational level compared to, say, a more compact body of large manufacturers (e.g. the tobacco industry). In addition, the structural weakness of the European Parliament has a corresponding effect on these interests even if organized. Electoral power simply carries less weight in Euro-politics.
Since the outcome of the Community legislative process becomes the supreme law of the land, national judicial control of primary legislation -- in those systems which have such control (e.g. Italy, Germany, Ireland) -- is compromised, too. The European Court of Justice, like the European Parliament, does not, arguendo, offer an effective substitution since, inevitably it is informed by different judicial sensibilities in particular in relation to interpreting the limits of Community competences. Since the governments of the Member States are not only the most decisive legislative organ of the Community, but also fulfill the most important executive function (they, much more than the Commission, are responsible for the implementation and execution of Community law and policy) they escape, too, national parliamentary (typically weak) and national judicial (typically stronger) control of large chunks of their administrative functions.
Domestic preferences are, arguably, perverted in a substantive sense, too. A Member State may elect a center right government and yet might be subject to center left policies if a majority of, say, center left governments dominate the Council. Conversely, there might even be a majority of, say, center right governments in the Council, but they might find themselves thwarted by a minority of center left governments or even by a single such government where Community decisional rules provide for unanimity. Both in Council and in the European Parliament the principle of proportional representation is compromised whereby enhanced voice is accorded citizens of small states, notably Luxembourg, and, arguably, inadequate voice accorded citizens of the larger states, notably Germany.
Lastly a feature which is said to pervade all Community governance, and negatively affect the democratic process, is its overall lack of transparency. This is not just a result of the added layer of governance and its increased remoteness. The process itself is notoriously prolix, extremely divergent when one moves from one policy area to another and in part kept secret. "Comitology" is an apt neologism -- a phenomenon which requires its very own science which no single person has mastered.
This concludes the "Standard Version." Our argument is, to repeat, that it represents some kind of "received knowledge" though we have tried to be careful in our claims about its veracity. It is true if it corresponds to some objective reality; it is real, albeit in a different way, if it is believed to be true. Probably no one subscribes to all of its tenets. But in large measures it sets the agenda for enhancing democracy: Increasing the Power of the European Parliament, increasing transparency et cetera.
We will not critique it directly but instead turn to certain features which have been absent from the debate or have been underplayed in the "Standard Version."
The discourse of democracy in the European Community - and strategies for its enhancement, presuppose the existence of a polity. There is, of course, no universal consensus as to how to classify the Union in political terms. But, whatever classification is adopted, that becomes the model against which the democratic deficiencies of the Community are assessed and remedies offered. The principal concession to this monolithic approach refers, of course, to the Three Pillar structure of the European Union of which the Community is but one pillar. But, the typical (though not uniform) approach taken towards Pillars II and III is not that they are not democratic, but that they are a more primitive form of European Integration and that the principal strategy in relation to them should be one of eventual Communautarisation.
The approach we are commending in this study leapfrogs the theology of politically classifying the Union and also leaves aside the Three Pillar debate. From the perspective of power -- its exercise, control and accountability -- we prefer to speak not of three pillars but of three modes of governance: International (or Intergovernmental), Supranational and Infranational.
The three modes of governance do not correspond to the three pillars. There is a mixture, in different dosages, of all three modes in Pillars I, II and III, though clearly the Community pillar is more Supranational and Pillars II and III are more International. In some crucial spheres Union governance is international; in other spheres it is supranational; in yet others it is infranational.
The utility of our alternative trichotomy is that it better maps the permutations of power distribution in the overall European polity and will enable Parliament to explore in an altogether richer manner the different ways in which the problems of democracy manifest themselves in Europe. There will, in our view, also be an additional political advantage in the way Parliament positions itself vis-a-vis other actors and, principally, the delicate issue of national parliaments.
Here, first, are some examples of what we mean by our trichotomy - A fuller account will be found in the annexes.
The very process of Treaty revision, which occurs on a regular basis in Community life is a prime example of the Community at a high International or Intergovernmental moment. Commission (and to a considerably lesser degree, Parliament) participate but not in a decisive way; the process is closer to diplomatic negotiation rather than Communitarian decision making. Treaty revision is only an example. Summitry is a constant and regularized feature of Community life often with very important consequences and policy choices being made.
Instances of Supranational decision making would be the standard Community process with, of course, its multifaceted (and mind boggling) array of voting permutations. To give but one example of many, the adoption of the big framework harmonization directives such as Banking or Video Rental Rights or, at a lover level, the Tobacco Labeling Directive and, no less interestingly, the rejection of the Tobacco Advertising Directive are all instances of Supranational decision making. The principal features of Supranational decision making are the special role and powers given the Commission, like the near exclusive power of initiative, the voting rules in Council, primarily the instances of Majority Voting, and the special role given Parliament, especially under Co-Decision and Assent.
Both International (or Intergovernmental) and Supranational decision making are characterized by a tension and constant balance between Community and Member States, between Commission Council, Parliament and national governments. Thus, International (or intergovernmental) decision making tilts more towards Government and Member State, Supranational decision making, coerces more a Community discipline and decisional outcome.
Infranational decision making describes the "lower level" regulatory apparatus of the Community - with Comitology as its main part. Infranationalism is characterized by the relative unimportance of the State-Community tensions. Technical expertise, economic and social interests and administrative turf battles shape the process and outcome rather than "national interest." Infranational decision making is typified by the miasma of, say, health and safety standard setting, telecommunications harmonization policy, international trade rules-of-origin. In a special annex we list an impressive array of policy choices made in the infranational mode.
It would be facile, based on the above examples, to conclude, simpliciter, that the intergovernmental deals with "important" issues, supranational with "middle range" issues and infranational with trivia. The commonsensical wisdom of Parkinson may well apply in this area too: Huge diplomatic effort may be invested in this or that provision of, say, the IGC; enormous resources may be invested in shepherding an harmonization measure through the ever more complex Commission-Council-Parliament procedures; and yet the reality of important aspects of the Single Market may have a lot more to do with the details of implementation, with the actual standards set by committees and the like.
For the International approach States are the key players and Governments the principal actors. As a mode of governance, the Union is seen as an inter-national arena or regime in which governments (primarily the executive branch) are the privileged power holders. The Union is principally a context, a framework within which states/governments interact.
In the Supranational approach States are privileged players but the Community/Union is not only or primarily a framework but a principal player as well. The privileged actors are State governments and Community Institutions. State governments here is understood to include the main branches -- legislative and judicial though, not necessarily with equal weight. But here, too, the executive branch is the key State player. The Commission, Council and increasingly the European Parliament, are critical actors and fora of decision making.
The Infranational approach downplays both the Community and the Member States as principal players and likewise the role of primary state and Community institutions. In that it is distinct from the international and supranational. It is like the international approach in that Union is primarily a context, a framework within which actors interact. The actors however tend to be, both at Union and Member State levels mid range administrations, departments, private and public associations, certain, mainly corporate, interest groups.
In the international mode the focus is on negotiation, intergovernmental bargaining and diplomacy. There is a relatively low level of formal institutionalization, and a premium on informal and unstructured interaction through the emergence of informal networks. Formal sovereign equality (including a formal veto) and the loose reflexes of international law prevail which, of course, should not be understood as leading to full equalization of power among the actors. The materia is often -- though clearly not always -- constitutional (in non-technical sense).
The modus-operandi of the supranational mode is more structured, formal and rule bound. Bargaining and negotiation are far more akin to a domestic legislative process of coalition building, vote counting and rule manipulation. The materia is, frequently, primary legislation.
Infranationalism is mostly about regulatory governance and management. There is a medium to low level of institutionalization and informal networking between "government" and corporate players abound.
The international mode is characterized typically by high actor visibility and medium to low process visibility. Supranationalism is characterized by medium (aspiring to high!) actor visibility and medium to low process visibility. Infranationalism has both low actor and process visibility.
Internationalism, Supranationalism and Infranationalism -- Static (structural) Elements
|
Arena |
International |
Supranational |
Infranational |
|
Disciplinary Background of Observers |
International Relations |
Law (typically public law) |
Policy Studies; Sociology |
|
Typical Issues of Governance |
Fundamental system rules; Issues with immediate political
and electoral resonance; International "High-Politics"; Issues dehors
Treaty |
The primary legislative agenda of the Community;
Enabling-legislation; Principal Harmonization measures |
Implementing and executive measures; standard setting; |
|
Principal Players |
Member States |
Union/Community & Member States |
[Union/Community is policy making context] |
|
Principal Actors |
Governments (Cabinets-Executive Branch) |
Governments, Community Institutions: Commission, Council,
Parliament |
Second level organs of governance (Com. Directorate,
Committee, Govt. departments etc.); Certain corporate and social-industrial
NGOs. |
|
Level of Institutionalization |
Low to Medium |
High |
Medium to Low |
|
Mode of Political Process |
Diplomatic negotiation |
Legislative process bargaining |
Administrative process, "networking |
|
Type/style of Intercourse |
Informal procedures; low level of process rules |
Formal procedures; high level of process rules |
Informal procedures; low level of process rules |
|
Visibility/Transparency |
High actor and event visibility. Low transparency of
process |
Medium to low actor and event visibility and medium to low
transparency of process |
Low actor and event visibility and low transparency of
process |
What has all this to do with a Parliamentary Strategy for Enhancing Democracy?
The inter-supra-infra trichotomy enables us to build a better picture of the disbursement of power and accountability in the Union as compared to the "standard version". Critical in building this picture is to understand not only the different modes of empowerment of, and desert to, various actors according to the mode of governance but also the fluidity and hence dynamics of allocation of issues to the different forms of decision making. The stakes as to arena, where (in this scheme) issues get decided, is as important as what gets decided -- since the where impacts, indeed determines the what.
For the lawyers among readers, the ERTA decision or Opinion 1/76 of the European Court of Justice was not about content but about forum and mode of decision making: A bid by the Commission to transfer the treaty negotiation from the international to supranational arena. The Maastricht three pillar structure is also about arena, and the various positions of the European Parliament in the ongoing Community debate should be partly understood as bids about mode rather than content of policy making.
Since the SEA which saw the strengthening of both the legal framework of supranational decision making and the relative empowerment of the Commission and Parliament, we have seen considerable political battles concerning fora rather than outcome. Comitology becomes a live issue in exactly the same period.
The trichotomy model already suggested "in-built" empowerment of certain actors: State Government in the international mode, State Government and Community Institutions in the Supranational mode, Administrations (national and Community) and certain corporate actors in the infranational mode. But this, surely, is only a starting point.
Examine the three modes from the perspective of non-governmental public and private actors. Actors which have privileged access to national government (e.g. government political parties) could have an interest in international decision making. An opposition party may, by contrast, presage for supranational decision making, if the Community balance of power favours its position. A coalition of Member States may presage transfer (or maintenance) of an issue in the Supranational arena where majorities have more weight and are more legitimate. A minority or individual Member State may presage for transfer to the international arena (e.g. France over the Blair House Agreement) where definitionally the specific gravity of each Member State is higher.
Control and accountability are also critical variables in understanding the implication of the three modes. The international mode will favour domestic arenas of accountability (national parliaments, national press). The supranational mode suffers from all the democratic defects of Community decision making outlined in the "standard version". Infranationalism has an all-round low level of accountability.
Judicial Review tends to be more substantive in the supranational arena, procedural in the infranational arena and scant in the international arena. When judicial review is perceived as a threat we may expect to find arena battles.
Let us now "translate" the model into the politics of Community democracy. Supranationalism, the "authentic" Community process is well known. But how do Intergovernmentalism and Infranationalism play out in the discourse of democracy?
Intergovernmentalism may be a desirable feature of Community and Union governance or a necessary evil, but one or the other it is a central feature of the system and will, in all likelihood, stay so for the foreseeable future. It is also self-evident that given the importance of the decisions adopted in this mode of governance, democratic accountability is as important here as it is elsewhere in the Community. Note, the issue is not only one of the executive branch of the Member States escaping effective parliamentary control both at home and at the European level. Asserting democratic control over Intergovernmentalism is to try and ensure transparency of process and, above all, fairness of access to the key intergovernmental players.
Much energy can be expended on trying to eliminate or diminish Intergovernmentalism. But if one accepts it as a constant feature of Community governance certain implications would seem to follow:
Infranationalism poses a different democratic challenge. As we shall argue below and as shall be elaborated in the Infranational Annex to this study, the typical Comitology debate has become a surrogate for inter-Institutional turf battles. Parliament has, by and large, thrown its energy and weight behind the demands to increase the role of the Commission in Comitology and to reduce the role of Council and the Member States. It has, in our view, been animated in this posture by its "integration" vision according to which the Commission (with appropriate Parliamentary control) is the appropriate Institution to have primary "Comitology responsibility."
In our view Parliament has been expending its energies in the wrong battle and it is time it shifted its focus to what should be its principal concern in relation to Comitology. From the perspective of democratic control, of transparency and of a fair and open access - as well as good and efficient administration -- this debate about institutional control of Comitology is almost irrelevant. For the pathologies and democratic deficiencies will be present in any institutional - Commission-Council permutation.
The thrust of our argument is as follows:
1. That Comitology is an inevitable, and, indeed indispensable feature of administrative governance. That ideally it would offer the potential for higher transparency and easier interaction between governor and governed. The reality, however militates against this potentiality. 2. Behind the Labels, of "Commission" and/or "Council" in the Comitology Regulations the reality is a cluster of discrete administrative processes of management, the key public official actors of which are European and national mid-level (oft capable and professional) civil servants. 3. That except in special instances of a rather exceptional political nature the top echelons of Commission, Council, Parliament and Member State Governments inevitably exercise scant effective control of the Comitology decisional process and outcome (hence Infranationalism) 4. That in many instances, especially in the "technical" harmonization area, Comitology is responsible directly for fundamental societal decisions on allocation of risk and its costs and indirectly for significant decisions on allocation of resources and redistribution. 5. That no matter what institutional formulation is adopted for formal Comitology decision making, the reality will see the emergence around each discrete Process - of which there are hundreds - a "network" involving public and private interested parties which together will effectively be shaping the normative outcomes of the process. 6. That these networks, by their nature tend to privilege certain interests and under-privilege other competing interests.
The principal pathologies of Comitology, on this reading, are not to be found in a distortion of power as between, say, Commission to Council and Member States. The pathologies are, instead, to be found in the twin risks of A. Hugely consequential regulation taking place at a level of public input and accountability which are not commensurate with the importance of such regulation; and B. in a Regulatory process which allocates privileges by unequal and hence unfair access.
Addressing this aspect of Infranationalism should, in our view, be a central concern of the European Parliament even if, as we shall suggest, the remedy is not necessarily to be found in an increase of the powers of the European Parliament itself.
Usually the issue of "Hierarchy of Norms" in Community discourse refers to the proposals, articulated already in the 1984 Draft Treaty for European Union, for a more "rational" internal hierarchical organization of Community norms. One typical proposal, adopted in the defunct EP Draft Constitution of the European Union, would re-organize the "acts" of the Union in an hierarchy comprising of Constitutional Law, Organic Laws (regulating in particular the composition, tasks or activities of the Institutions and Organs of the Union) and ordinary Laws. In addition, Institutions would be empowered, under the Laws of the Union, to adopt Implementing Regulations and Individual Decisions.
These proposals, and others like them, re-emerged in the context of the Maastricht IGC, provoked an intense debate, and were eventually rejected, though in Declaration 16 to the TEU, Maastricht invited re-examination of the issue in IGC 96.
We characterize this dimension of the "Hierarchy of Norms" debate as Internal. In a very extensive annex to this Study we survey the various proposals and the debate surrounding them, as well as give full references to the vast literature on the subject. In the body of this Study we will only focus, relatively briefly, on certain aspects of the Internal hierarchy debate: The claimed benefits of a hierarchy, the connection to decisional structures and an assessment of the opposition to such proposals.
Given the richness of the discussion on the Internal "Hierarchy of Norms" we place in this Study a greater emphasis on the neglected issue of the External "Hierarchy of Norms" of the Community and Union to which we turn first.
What is the issue of External Hierarchy? It concerns not the relationship among internal Community norms but the relationship between Community norms and Member State norms. In theory and in practice this issue seemed to have been resolved decades ago: The European Court of Justice in its grand "constitutionalizing" decisions in the 60s announced the doctrine of Supremacy which established a clear hierarchy between Community norms and conflicting Member State norms. The former were "supreme" to the latter. Member State norms could not be applied in the face of conflicting Community norms. According to the Court, this hierarchy would prevail even in a situation which pitted a Member State constitutional norm against a Community measure. This jurisprudence has, by and large, been accepted by the Member States and their National Courts through differing rationales even if, on the question of constitutional conflict, some unclarity and uncertainty always lurked.
This External hierarchy was, in the language of the Court a cornerstone of the "New Legal Order." It also seemed functionally indispensable and fundamental for the very operation of the Community. That there would be conflicts between Community measures and Member State measures was unavoidable. How could the Community function if measures adopted by the Council and carefully crafted to reflect the balances reached at the end of the decision making process, taking into account the positions of the Institutions and the various Member States, were then not applied but this or that Member State on the grounds that they were in conflict with their internal law?
What point would there be the move to Majority voting if the outcome of such votes would not be effective and binding within those Member States in which the Community measure was in conflict with the national measure.
And yet this indispensable External Hierarchy, long considered a foundational asset of the acquis communautaire, has been coming under direct and indirect challenge. Such a challenge, though disguised, is to be found in decisions of the German Constitutional Court and the Belgian Cour d'Arbitrage. There are already decisions of lower courts in Germany which are challenging the authority and superior hierarchy of Community norms. This trend may continue. It has also been raised, more openly than ever before from certain political quarters in certain Member States.
Our view is the rationalizing the Internal Hierarchy will have benefits both to transparency, efficiency and, perhaps, to a more rational inter-institutional division of functions. But even if there is no such rationalization, the Community will not be affected in fundamental ways. By contrast, the problems with the External Hierarchy are fundamental and pose a far greater threat to the future of the Community and Union. Dealing with external hierarchy problems are also more naturally within the Parliamentary turf.
The European Union enjoys powers unparalleled by any other transnational entity. It has, inter alia, the capacity
-- to enact norms which create rights and obligations both for its Member States and their nationals, norms which are often directly effective and which are constitutionally supreme.
-- to take decisions with major impact on the social and economic orientation of public life within the Member States and within Europe as a whole.
-- to engage the Community and, consequently the Member States by international agreements with Third countries and international organizations.
-- to spend significant amounts of public funds.
Europe has exercised these capacities to a very considerable degree. Critically, it has done so within a "constitutionalised" hierarchical framework which posits that its Norms are superior to those of the Member States.
Whence the authority to do all this?
This is the fundamental question at the root of the challenges to the External Hierarchy of Norms.
One possible source is public international law. But if we adopt international law alone as the source for the exercise of public authority in the Union we will have undermined one of the most fundamental and inspiring developments of the Community and Union in the last three decades -- its mutation from an international into a constitutional order. It would be a seriously retrograde move particularly sensitive at the moment of possible large scale Enlargement.
So, whence the authority for External Hierarchy of Norms?
In Western, liberal democracies public authority requires legitimation through one principal source: The citizens of the polity. The principal hallmark of citizenship is not the enjoyment of human rights-- though that may be part of the citizenship package. That is the hall mark of humans. We pride ourselves that we extend human rights to visitors, aliens and the like. The deepest, most clearly engraved hallmark of citizenship in our democracies is that in citizens vests the power, by majority, to create binding norms, to shape the socio-economic direction of the polity, in fact, all those powers and capacities which, as we suggested, the Union now has. More realistically, in citizens vests the power to enable and habilitate representative institutions which will exercise governance on behalf of, and for, the citizens. If we seek primary citizenship rights we should look for all the instruments and mechanisms which are there to ensure the mastery of citizens over the polity and its organs. The institutions and mechanisms of democracy are the repository of primary citizenship rights. Note too, that this huge privilege and power of citizenship has, traditionally, come with duties -- not simply a duty to obey the norms (that falls on non-citizens too) but a duty of loyalty to the polity with well known classical manifestations. The republican spirit, note, did not rebel against Taxation. It rebelled against Taxation without Representation.
The first big question which citizenship gives rise to is to find the mechanisms to assert the linkages between citizens and the exercise of public authority. Absent those linkages, public authority loses its legitimacy. Thus, absent European citizens there is a serious problem of legitimate authority which the celebrated constitutionalisation accentuates.
Lawyers recite dutifully that the
Community constitutes a new legal order ... for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. (Van Gend en Loos)
Habitually we celebrate the fact the obligations among States created by a Treaty confer rights on individuals which courts must protect, even against States. It is in this sense that calling individuals subjects of the Treaty alongside Member States may be justified. Subjects sounds awfully like citizens. Indeed, in Monarchies, the subjects of the Monarch are the citizens of the modern State.
But note: Individuals are "subjects" only in the effect of the law. In this sense alone is it a new legal order. Consider the following reductio ad absurdum: Imagine three states which still allow slavery. There is trade among these states, including trade in slaves. Imagine further that the three get together and conclude a Treaty which creates mutual obligations among them such as prohibiting a workday for slaves of more than 20 hours. They also create institutions which are henceforth empowered to regulate all matters concerning slavery. Imagine now that they do not wait for a judicial decision but include explicitly in their Treaty what the ECJ "found" in Van Gend en Loos: That these obligations, are, independently of national legislation, intended to create rights for the slaves themselves, and that national courts would have to protect those rights. Another New legal order will have come into being. Does the fact that the obligations created by the States, the High Contracting Parties which bestow rights on our poor slaves make them subjects of the Treaty? Well, yes in the limited sense of deriving rights created by others. No, in the sense that they have no say in the making of those rights. Enjoying rights created by others does not make you a full subject of the law. In times gone by Men, the full subjects of national polities, created many obligations among them, as employers for example, which conferred enforceable rights on women. This, alone, did not make women full political subjects of the legal order until emancipation. Thus, in Van Gend en Loos, to the extent that the High Contracting Parties retained the prerogatives to make the obligations, bestowing rights on individuals, there was, in this sense, little new in the legal order, except that it accentuated the problem of legitimacy. For if the Community and Union have the capacity to exercise law making power over individuals independently of national legislation, by whose authority does it enjoy that power? One could object to our absurd example and claim that in the Union context the States are composed of citizens, not slaves who enabled their States to create institutions which create obligations etc. That is true, but than one is back to legitimation through the mediation of the State, i.e. through public international law and one waves the "new legal order" good bye.
One paradox, then, of the European construct has been that it created a new, non-international, constitutionally oriented legal order in the effect of its norms, but avoided a necessary component of legitimation in the creation of the norms -- citizenship. It is not that one has to exclude all norm making authority and legitimating power to States as such. After all, in all federations, States or their equivalent, form part of the legitimation at the federal level. But there must, likewise, be direct legitimation by citizens -- de jure or de facto -- at the Union level.
It is not, perhaps, coincidental that in Maastricht in the face of a growing sensation of loss of legitimacy and authority the concept of citizenship was introduced. It is not particularly radical to suggest that this introduction has been far from successful.
The following is our analysis of the current discourse of citizenship.
The importance of European Citizenship is acknowledged by Commission, Parliament and Council in the various official inputs to IGC 96. But if the endless platitudes about European Citizenship are to be more than lip service one has to be willing to assess unflinchingly the recent history of the concept in the European construct. To its credit the Commission Report to the Reflection Group on the subject of citizenship is, in appropriate diplomatic language, scathing in assessing the colossal failures in the implementation of Article 8 and the Citizenship Chapter and in the opportunities missed since Maastricht. But the malaise is not simply one of implementation but in the very conceptualization of European citizenship.
The treatment of European Citizenship both in the TEU itself and, subsequently, by the Institutions and the Member States of the Union, is, not to mince words, an embarrassment. The seriousness of this notion -- after all the cornerstone of our democratic polities -- and its fundamental importance to the self-understanding and legitimacy of the Union are only matched by its trivialization at the hands of the powers-that-be. It is no surprise that, so far as we can tell, the introduction of Citizenship by the TEU, a development characterized, rightly, by the Commission in its input to the Reflection Group as A... porteuse de potentialités has had negligible if any impact on its intended objects -- the citizens of the Union. And if any notice were taken by the citizenry of the actual impoverished content of the single-articled citizenship Chapter in the TEU, the reaction would be, or at least deserve to be, skepticism: For those who drafted it, those who approved it and for the Union which can come up with so little to give to, and ask of, its citizens.
The benign view would, then, regard the Maastricht concept of Citizenship as the result of muddled and hasty drafting. Alternatively we invite you to consider the hypothesis which no State or Union official may openly espouse, that the Citizenship clause in the TEU is little more than a cynical exercise in public relations on the part of the High Contracting Parties noteworthy by what it does not do than what it does and which probably has backfired even as an exercise in public relations.
Consider the evidence starting with Article 8 itself:
(1) Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union.
Although the Citizenship Chapter and its Article 8 are part of the Community Pillar, the citizenship established is, supposedly, Union citizenship. It would be strange if Community nationals would be citizens of the Community but not of the Union. After all, it was the move from Community to Union which was to mark the TEU. But the prevailing view among Member States at least, is that the Union, as such, has no legal personality. How can one be a citizen of an entity which has no legal personality? This might be seem a quibble with no consequences but not if you consider what follows:
Article 8 continues:
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
In a system based on the Rule of Law rights and duties are, for the most part, backed by judicial enforcement. The High Contracting Parties of the TEU, however, excluded as far as they could the jurisdiction of the Court from the Pillars 2 and, significantly, Pillar 3. On one view this means that no rights and duties are imposed on individuals outside the Community Pillar or, that whatever rights and duties were created, would not, in the intention of the States, be enforceable.
The impression of at least a measure of cynicism in this respect is suggested by the following.
Article 8d provides a couple of the rights to be enjoyed by Union citizens.
Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 138d. Every citizen of the Union may apply to the Ombudsman established in accordance with Article 138e.
The right of petition pre-dated the TEU. So it was just a matter of reassigning a name. But when we turn to the text of Articles 138d and 138e, we find that in the first place, the rights, even of petition and a complaint against maladministration, are restricted to matters
which comes within the Community's fields of activity
as if the citizen cannot be directly harmed by maladministration of, say, some aspects covered in Pillar 3, and, in the second place, that one could hardly qualify these two rights as specific citizens right for, after all, appropriately, they belong not only to citizens, but, in the language of the provision itself, to
any natural or legal person residing or having its registered office in a Member State of the Community.
It is not that fundamental human rights, even basic political rights, cannot be part of the legal patrimony enjoyed by citizens in their capacity as human beings, but why then spell them out here as if they introduce something new or something peculiar to citizenship, when it transpires that part of their attractiveness is the fact that they are considered universal. One cannot escape the feeling that the drafters were desperately looking for some relatively easy, and non-consequential "ballast" for the ill defined and ill thought citizenship Chapter.
There is nothing easy or non consequential in another citizenship right -- the right to move freely within the Union. Article 8a provides in its first part that
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States
This would be significant in that it could reflect and constitute a sense of that much vaunted beloningness which is so prominent in current official thinking. But, apparently, the High Contracting Parties appreciated this consequentiality and thus we find the notorious sequel:
subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
The Treaty, at the time, limited that right to individuals not in their capacity as human being, let alone citizens, but in their capacity as factors of production, part of the four fundamental economic freedoms, important, but hardly the stuff of citizenship. Not surprising, in its input to the Reflection Group one cannot but note the terse and scathing judgment of the Commission as to the measures which were to give effect to this provision.
Much emphasis is placed, in both Commission and Council Reports to the Reflection Group on the evolutive nature of the concept as indicated in Article 8e. But here too one cannot avoid the uneasy feeling of a mealy mouthed commitment. Any such extension will require unanimity -- increasingly difficult in a Community of fifteen, the European Parliament -- on a matter of citizenship, note -- will only be consulted, and to cap it, the decision -- a mere recommendation -- will require constitutional ratification by the Member States. The prospects for deepening the notion of European citizenship could not be all that high.
The reason we favour the hypothesis of a cynical public relations exercise in construing the notion of Citizenship which the TEU supposedly established is that the alternative is even a worse hypothesis -- an unbelievably impoverished view of the very meaning of citizenship and its principal components. Can one credit that the hodgepodge of relatively trivial civic artifacts in Article 8 was believed by any serious official or statesman or stateswoman to capture what European citizenship should be about? A citizenship composed of -- the right to complain to an ombudsman or petition the European Parliament (provided the complaint concerns a matter A... which affects him, her or it directly") and with no guarantee of outcome; the right to consular help in foreign countries in which your own Member State has no representation as if reciprocal arrangements are not already in place as any seasoned traveler will know; and the right of non-residents to vote for the European Parliament or local authorities? Article 8a-8d are all important in their own little way but so marginal and remote from the core of citizenship. The only significant measure, free movement and the right to residence, a measure which could connote a double sense of belonging, turned out to be a chimera. And the promise of future developments, contingent on such procedural difficulties as to make it illusory.
In the eyes of the Commission the two key values which make Union Citizenship most worthy and, thus, worth developing to the full are: a. that citizenship reinforces and renders more tangible the individual's sentiment of belonging to the Union; and b. that citizenship confers on the individual citizen rights which tie him to the Union. Something was going amiss in the public relations of the Union. Maybe citizenship would be an answer?
That the citizen belongs to the Union is, perhaps, a sentiment important to instill. But even accepting the dubious assumption of the desirability of grafting a national type citizenship ethos on to the Community, surely, even more important is to render tangible, through the concept of citizenship and its manifestations, that it is the Union that belongs to the citizen? But you will look in vain to Article 8 for meaningful instruments to render tangible or instill ownership over rather than belonging to. Likewise, rights are surely important, but in the classic discourse of citizenship surely duties, the things the polity asks of its members, are as critical as that which it gives them. The demands of loyalty (not blind, to be sure), of service even, of sacrifice, are as fixed a hallmark of citizenship as are rights. But, although, Article 8 mentions duties these remain mysterious and none are listed. And whereas the Council, to an even greater degree then the Commission and especially, Parliament, are lavish in their clamour for more and more rights, the language of duty and service let alone loyalty are muted at best -- Parliament does suggest some European Peace Corps equivalent -- and for the most part absent altogether.
What, then, is the culture, what is the ethos which underlie phrases such as this: [L]'instauration du concept de citoyenneté ... vise à approfondir et rendere plus tangible le sentiment d'appartenance du citoyen européen à l'Union européenne, en lui conférant des droits qui lui soient liés (Commission) or 'Rapprocher l'Europe du citoyen' est aparu nécessaire, au fil des années et particuliérement lors du récent débat public sur la ratification du TUE, pour renforcer l'adhésion des citoyens à la construction européenne (Council) and others like them?
What is the culture and ethos which explain a concept of citizenship which, for example, speaks of duties but lists none? Is it the discourse of civic responsibility and consequent political attachment at all? Or is it not closer to a market culture and the ethos of consumerism? Is it an unacceptable caricature to think of this discourse as giving expression to an ethos according to which the Union has become a product for which the managers, alarmed by customer dissatisfaction, are engaged in brand development. Citizenship and the rights associated with it are meant to give the product a new image (since it adds very little in substance) and make the product ever more attractive to its consumers, to reestablish their attachment to their favourite brand. Ours is not an anti-market view, the importance of which to European prosperity is fundamental. But it is a view which is concerned with the degradation of the political process, of image trumping substance, of deliberative governance being replaced by a commodification of the political process, of consumer replacing the citizen, of a Saatchi & Saatchi, Madison Avenue, Americanized Europe.
Citizenship and Rights (usually fundamental human rights) are invariably thrown together in the IGC 96 debate. This is particularly characteristic of the approach adopted so far by Parliament. We consider this conflation as part of the problem. Almost uniformly in every single Report and Resolution, official and unofficial, the same phraseology is employed when the issue of citizenship and rights is discussed: The problem is defined as alienation and disaffection towards the European construct by individuals. The medicine is European citizenship. What is the content of this medicine? Rights, more rights, better rights, all in the hope of bringing the Citizen "...closer to the Union."
On what basis is the claim made, again and again, that rights will make people closer to the Union? Even if there is some truth to that, the picture is, at a minimum far more complex in the current European context. We think rights do have that effect in transformative situations from, say, tyranny to emancipation. But that has long ceased to be the West European condition.
Reflect on the following:
1.Take, say, a German or Italian national. Their human rights are protected by their constitution and by their constitutional court. As an additional safety net they are protected by the European Convention on Human Rights and the Strasbourg organs. In the Community, they receive judicial protection from the ECJ using as it source the same Convention and the Constitutional Traditions common to the Member States. Many of the proposed European rights are similar to those which our citizen already enjoys in his or her national space. Even if we imagine that there is a lacuna of protection in the Community space, that would surely justify closing that lacuna -- but why would anyone imagine in a culture of rights saturation, not rights deprivation, that this would make the citizen any closer to the Community? Make no mistake: We do think the European human rights patrimony, national and transnational, has contributed to a sense of shared identity. But we think too that one has reached the point of diminishing returns. Simply adding new rights to the list, or adding lists of new rights, has little effect. Rights are taken for granted; if you managed to penetrate the general indifference towards the European construct by waving some new Catalog or by broadcasting possible Accession to the ECHR, the likely reaction would be to wonder why those new rights or Accession were not there in the first place.
2. For the most part rights set "walls of liberty" around the individual against the exercise of power by public authority. The Rights culture, which we share, tends to think of this as positive. But, at least in part, at least psychologically, it might have the opposite effect to making the individual closer to "his" or "her" Union. After all, every time you clamor for more rights, which in this context are typically opposable against Community authorities, you are claiming that those rights are needed, in other words that the Union or Community pose a threat. You might be crying "Wolf!" to score some political point, or you may be right. Either way, if you are signaling to the individual that he or she need the rights since they are threatened, it is not exactly the stuff which will make them closer to "their" Union or Community.
3. Finally, there is very little discussion of the divisive nature of rights, their "disintegration effect." Deciding on rights is often deciding on some of the deepest values of society. Even though we blithely talk about the common constitutional traditions, there are sharp differences within that common tradition. Some of the rights highest on the Christmas list of , say, the European Parliament, noble and justified as they may be, could if adopted for the Community be celebrated by the political culture in some Member States and regarded with suspicion and worse in other Member States. Remembering the Grogan v SPUC abortion saga, which the ECJ inelegantly, but perhaps wisely ducked, will drive home this point.
Human rights have a place in the discourse of citizenship, even an important place to which we shall allude. But given how thing stands, developing political means of control is more central to European citizenship than piling on new human rights. We propose thus, somewhat artificially, to deal separately with the issue of citizenship and of human rights though both are parts of the authority and legitimacy puzzle of European norms.
As we see it, the major problem of European citizenship is not inventing new rights to be associated with it but giving it meaning, developing some measure of shared understanding what it can and should (and should not) mean. Citizenship is above all a state of consciousness and self-understanding and only in smallish part translatable into positive law. What is needed is serious public discourse as a pre-condition to any operationalization.
Consider some of the deep issues: Citizenship is a concept associated -- though not necessarily co-terminus -- with Statehood and Peoplehood -- that is the only frame of reference we have. Does European citizenship represent, then, a movement towards a State? One hopes not. But what does European citizenship mean then outside that statal context? Citizens collectively constitute the people of a state and sometimes citizens constitute the nation. If so, does European Citizenship implicitly challenge or even change one of the axiomatic foundations of the Union -- that it is not an American style Nation building Melting Pot but a process designed to bring "... an ever closer union among the peoples of Europe"? How does one reconcile European citizenship with multiple European peoples and without grafting onto the European Union the artifacts of a people and statehood?
How, then, could and should European citizenship be constructed. Clearly it should not attempt to become a surrogate concept for European nationality. Article 8 in this respect is refreshing. It breaks the classical linkage between Citizenship and Nationality: Nationals of the Member States are Citizens of the Union. It contemplates the altogether modern and exciting notion of European citizenship -- as a civic cultural and political artifact -- without the baggage of European nationality.
But how does one operationalize this concept beyond the trivia of Article 8?
-- It will have become apparent that a central part of "citizen rights and duties" are part and parcel of the mechanisms and institutions which form the object of proposals for institutional reform. The discourse of democracy is inseparable from the discourse of citizenship. A Union suffering from democratic deficiencies mocks its own citizenship. The deeper then the democracy enhancing Institutional Reforms the more meaningful the notion of European citizenship.
-- As to the specificity of citizenship provisions, the Powers-that-be must accept
That European Citizenship has a grave and symbolic character in the vocabulary of political discourse and cannot be treated as some cheap public relations artifact. The public will not be fooled.
That "padding" the concept is probably worse than doing little and it is better to move on this concept with great deliberation, with few but strategic and symbolically important constructs and with considerable patience.
That, likewise, creating unrealistic expectations is worse to the European construct than an organic evolution.
Every person holding the nationality of a Member State shall be a citizen of the Union. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
Nothing more.
This would be in line with Article 210 which provides tersely that the Community has legal personality but does not proceed to enumerate the characteristics of that personality. The attributes of citizenship will emerge from other provisions of the Treaty and the case law.
The proposal of the European Parliament to try and group under the Citizenship Article all the rights granted Union citizens under the Treaty is non-practical. In all the numerous areas, from free movement of workers to Competition policy, each time the Court has recognized a Community provision as having Direct Effect rights are created. Are all of these to be jumbled together under the citizenship provision? That proposal is animated, it seems to us, by the same Public Relations ethos.
It is, perhaps, worth mentioning a few measures which have received somewhat less attention.
This issue is, of course, fundamental to the authority of Community norms and to the preservation of the External Hierarchy of Norms. The discourse about it too has, in our view, suffered from a surfeit of rhetoric and not sufficient attention to what we consider are the true issues.
There is, of course, something ironic in the High Contracting Parties, solemnly undertaking in Article F TEU that
The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law
and then excluding its enforceability as regards any violation outside the Community pillar.
Maybe article L was chosen as the exclusion clause so as to remind us of the new meaning it gives the expression Lip service. Ingenious interpretations have been offered to suggest why this exclusion may not be total, but, at best, they nibble at the boundaries. Is it "unrealistic" to suggest an amendment which would accept that violations by the Union of human rights (notably under the Third Pillar) should be justiciable at least in an action brought by a Member State or a Community Institution, if not at the hands of the much vaunted European Citizens (citizen of the Union, recall) let alone mere individuals even if not citizens?
Realistic or otherwise, in this Study we shall deal with human rights primarily in the context of the First Pillar, the Community.
In the Institutional and academic literature surrounding the IGC three items dominate the agenda, to the practical exclusion of all else: Accession to the ECHR, Adoption of a Community Catalogue of Human Rights and, of course, what we may call Hobby-horses: Interested parties clamoring for all manner of new rights (or prohibitions on discrimination).
All three items are tired old horses which have over the years been flogged practically to death. Since 1978 when the Commission first made its proposal that the Community accede to the ECHR, that topic has surfaced regularly and analyzed ad nauseam. Likewise, the issue of a Community Catalogue has been on the agenda since, at least, the First So Lange case of the German Constitutional Court. And calls for new rights are as old at least since the 1969 Stauder decision of the ECJ. The European Parliament has been at it at least since the 1978 Scelba Report.
We do not plan, then, to recapitulate these issues fully. We do not plan, for the Nth time, to explain in depth the lacunae, real and imaginary, which non-Membership of the ECHR entails, nor do we plan to list, yet again, all the pros and cons to having or not having a Community own catalogue. Instead we will sketch a summary of the issues, explain our preferences and focus only on some issues relevant to these agenda items which have not received that much exposure. Likewise, we certainly do not plan to comment one by one on each category of discrimination which, say, the Parliament wants the Treaty "...to reject."
We will, however, want to explain how all three items belong to one specific mind-set about human rights and why, even if remaining within the human rights paradigm, an alternative mind set should be explored which would lead to our principal proposal, the creation of a Human Rights Title in the Treaty which would usher forth the development of a Human Rights policy. Our view is that such a policy would be more important for the effective vindication of Human Rights than either Accession or Adoption or both.
Reviving its 1978 initiative the Commission has recently re-proposed the accession of the Community to the European Convention on Human Rights. Since the Court, erroneously we believe (though politically convenient to some) has found that the Community has no competence under the Treaty to accede to the Convention. The issue, then, has been put squarely on the agenda of the IGC.
The issue which the IGC has to face then is the decision in principle whether accession is desirable and/or necessary.
The Court has for decades indicated its intention to look to the Convention, as one of its sources, whenever an issue of human rights comes up before it and has done this on many occasions. For a long time there was a view, reputedly shared by the Court itself, that since the Convention formed part of its sources, Accession was not necessary.
Strictly speaking the Community as such is not a member to the Convention. This means that an application to Strasbourg against an act of a Community organ as such (assuming exhaustion of local remedies within the Community legal order) must either fail as the applicants in the CFDT case ([1979] 2 CMLR 229) found out though in that case the position of France was determinant. The alternative solution of joint liability by the Member States would not be fully satisfactory either. If the Strasbourg organs find the Member States liable for implementation of a binding Community norm this would be unsatisfactory in that the real defendant, the Community, would not have been the respondent. There have been some interesting cases out of Strasbourg, but there is no real way to "pierce the Community veil." It has also become clear that in some cases it is possible that the level of protection afforded by the ECJ would be lower than that afforded by the ECHR organs. A clean solution to all these issues can only be by Accession though one should not underestimate the practical problems of Accession which would require a modification of the Convention and, thus, ratification by all High Contracting Parties, a process which could last for years.
And yet we do not think that these considerations alone would justify accession -- they are rather exceptional cases. For the most part, the judicial protection afforded by the Court would meet or exceed Strasbourg standards.
The main advantage which would accrue to the Community would be the symbolism inherent in subjecting even the European Court itself to a measure of scrutiny by an outside body. It would also be esthetic. How can one preach to all the new East European states the virtues of the ECHR and not be a Member oneself (a little bit like the democracy story: Democracy is a condition for accession to the EU, but the EU suffers from a perennial Democratic Deficit itself). In general our preference for accession is based on a bias, rebuttable to be sure, in favour of human rights judicial review by courts not directly part of the polity the measures of which come under review.
Transnational protection of human rights frequently involves the painful tension between the universal and the particular. Regularly, States defend alleged human rights violations on the grounds of respect for deeply held local cultural practices. Sometimes there is merit in the argument. Often, as in the case of, say, the Southern States in the USA defending in the 50s and 60s discrimination against blacks, or some countries today defending the ghastly practice of female mutilation, or corporal punishment of adults (hand chopping) and children (whippings, canings and the like) the defense is specious, a mockery of the transcendental notion of human dignity. In our view, local courts, close to local culture, are over susceptible to this type of argument. We are particularly suspicious of these claims when they emanate in contexts, such as Europe, of considerable common cultural affinity among peoples and a shared concept of the State and public authority. Adjudicating these competing claims between the particular and the universal is never easy and may not ultimately have a "right" answer. Some times, in relation, say, to the abortion issue, the solution of the two court levels can indeed be mutually exclusive with no "right" answer. But, on balance, from the perspective of our own human rights sensibilities, we prefer, in this respect, the bias of the transnational forum to that of the national one, tempered as it is by the doctrine of margin of appreciation and mindful that the transnational forum is often a second bite at the apple, the national jurisdiction having already had its say.
To sharpen this point -- the Convention is intended, on its own terms, to provide the Human Rights safety net for the Convention countries. In most cases it would enable the ECJ to provide additional protection. But as we saw in the recent Grogan v SPUC saga, the Convention Organs will occasionally exact higher standards then even the Court might have. One sometimes gets the impression that subjecting Luxembourg to the final scrutiny of Strasbourg is resisted even from within the European Court of Justice itself -- perhaps as an issue of prestige. If that were true it would be an unfortunate attitude. There is no loss of prestige for the ECJ to be in the same position of the highest courts in all Member States.
Should the IGC adopt such a written catalogue of rights? This is not the same type of issue that a country like Britain faces. After all the Court has developed a rich jurisprudence even absent such a catalogue. The advantages would be partly practical, not so much in clarifying the law since even a written catalogue would contain largely open textured language, but in broadcasting the existence of human rights protection within the Community legal order. For many, the main advantage of a catalogue would be in its symbolism -- the visible commitment of the Community to human rights. We think the issue must be part of a broader discussion. If, for example, the IGC will decide that the outcome of the Conference must be, on the one hand a European Charter encapsulating the essence of the Union in a linear and transparent way coupled, on other hand, with a massive annex with all the necessary technical amendments to the Treaty, it would be bizarre if such a Charter did not have more than an Article F type bland commitment to human rights.
What if the Community commits itself to Accession to the ECHR? We would be concerned if this argument were raised as an excuse not to have an autonomous Community catalogue. We think it would be unsatisfactory if by default the ECHR became the Community's catalogue. As mentioned above, the ECHR should be the safety net, but not the standard setter.
The big problem, then, would be the content of such a catalogue. We exclude the option of the IGC drafting a catalogue de novo. All comparative experience suggests that such an exercise takes years. We would not wish, after all, the Community catalogue to look like the TEU chapter on Citizenship!
Two "realistic" options seem to be open to the IGC: Either inserting an amendment committing the Community, with a fixed deadline, to the drafting and adoption of a catalogue. The drawback of this would be year another delay and the fact that if a catalog were adopted outside an IGC framework, it could not have the status of the Treaty itself and could too easily be amended by the Community legislator. Or, adopt, with modifications an existing, off the shelf, catalogue. The most promising in this respect appears to be the Declaration of Human Rights of the European Parliament. It is not a perfect document but its main advantage is that it exists, that it was drafted by a Union organ and approved by an overwhelming majority of the European Parliament.
From a strictly legal point of view the Declaration was perceived as a response to the widely perceived weakness in the current system of protection: the absence of a written catalogue encapsulating the rights to which the Court would give protection. As we pointed out not all commentators share the view that the absence of such a written catalogue was indeed a serious lacunae nor that a declaration of the European Parliament could, strictly speaking, fill that gap.
Important in the minds of the promoters of the Declaration within Parliament was a symbolism which adoption of the Declaration was hoped to achieve. It was argued forcefully that the Declaration could become one element in the building up of a European identity for Community citizens and residents: an important statement as to the meaning of belonging to the Community. One element it surely could become.
The principal objective of the Institutional Affairs Committee which drafted the Declaration was to transcend the constitutional limitations on the powers of Parliament and to draft the Declaration in such a way that would constitute a meaningful legal act to which would attach legal consequences. The technique used was to attempt a declaratory -- codifying document reflective of lex lata. Thus in the Preamble the Declaration makes a deliberate reference to the constant jurisprudence of the European Court: "Whereas measures incompatible with fundamental rights are inadmissible and recalling that these rights derive from the Treaties establishing the European Communities, the constitutional traditions common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the international instruments in force and have been developed in the case law of the Court of Justice of the European Communities." This being the case, the Declaration was meant to constitute a basic list of those rights deriving from the various sources mentioned by the Court. By design, the Declaration is conservative in its content. In drafting each of its material articles, the Parliament tried to find a basis in the language of the different constitutions and in instruments to which all Members States are parties. In other words, the Declaration tries to avoid rights or formulae to which a Member State could claim that they are not recognized in or by their own legal order. By design, the Declaration attempts a great economy of language. This is based on the conviction that the success of such instruments depends to a large extent on the wisdom of Courts whose task it is to interpret and apply the instrument.
It would seem that the generally conservative approach taken by Parliament coupled with sensitivity towards some of the rights high on the Community agenda, would justify serious consideration by the IGC. The downside would be that it would not satisfy everybody's aspirations. But no declaration does. The very existence of the document may obviate the need to address the myriad proposals for new rights in a variety of areas which may be thought to bog the IGC down.
The common theme which brings together the issue of Accession, Adoption and the clamor for new rights, is a an emphasis on Judicial Protection: The ability of the individual, utilizing any of the judicial routes available to him or her, to challenge a measure and get an effective remedy by a Court. Principal points of discussion about the judicial method concern the normative content of protection, namely what rights will be given protection; the question of standards, namely the level of protection to be afforded the individual by comparison to Member State standards and the formal, judicial procedural aspects of the process: Standing and the like. Implicit in this discussion is the assumption that provided the normative content and the Judicial protection thereof be sufficiently wide in its catchment (capturing all classical and new socio-economic rights); sufficiently high (protecting them at an adequate level); and sufficiently clear (affording the individual, and the legislator, the ability to know what rights are protected), the main problems of human rights are essentially solved. The "Ideal Type" may thus be characterized as a normative-judicial model: Substantive rights backed up by judicial review through the classical routes of seising a court. To critique the normative-judicial model is not to suggest its over-throw. The normative-judicial model must remain, and will remain, the cornerstone of protection of human rights in the Community. It is the near exclusivity of this model which must come under critical scrutiny. Even the most cursory reflection will reveal some of its weaknesses. Like similar all embracing models used in the economic analysis of law, it assumes a world which is transparent and rational which often does not correspond to reality.
Here, then, are some examples to highlight shortcomings of the normative-judicial model.
There may be a perfect substantive right (in terms of content) which protects the interests of an internal or external migrant worker; it may be judicially interpreted and enforced at a high and progressive level once adjudicated by the Court and it may even be set out clearly in some written document, and yet it is quite possible, and even probable, that the principal subjects of such a right, the migrant workers themselves -- for reasons of cultural, linguistic and socio-economic barriers -- will be totally ignorant of their ability to rely on such a right or rights in the face of a violation. They will simply never reach the Court. There may be a perfect substantive right (in terms of content) in the area of consumer or environmental protection, but the impact of its violation on any single individual could be so fragmented or diffuse, that either for formal legal reasons of locus standi (the absence of actio-popularis - class action) or for economic reasons of cost of litigation it will never reach judicial adjudication. There may be a perfectly construed right in the field of education or social security right which, however, requires a financial outlay by public authorities if it is to receive full, or even partial, vindication. Comparative analysis alerts us to the danger of expecting/requiring courts to vindicate such rights which have an impact on the public purse. In some jurisdictions courts simply refuse to do so. In others, they do with complex political and socio-economic consequences. These simple examples drive home the point, we hope, that in itself the normative-judicial model, however sophisticated, does not provide sufficient guarantees the protection of human rights is truly effective in itself.
The normative-judicial model must be complemented by an Access-to-Justice approach which insists on effective vindication over and above the normative content and judicial enforcement.
The proposal being put forward is based, then, on the proposition that Accession to the European Convention on Human Rights and the adoption of an internal catalogue of human rights in the context of a new Treaty may have important symbolic and political implications. On balance we advocate both. But neither of these two steps will, as we have already suggested, make an appreciable (rather than marginal and symbolic) contribution to the vindication of human rights within the sphere of application of Community (and Union) law.
What we are proposing therefore is that the Treaty be amended to include among Community Policies(!) a new Title: Human Rights. It could possibly be Title I (which would replace symbolically the current Title 1 - Free Movement of Goods). The content of this Title may include a Community catalogue of human rights, though, if a Catalogue is adopted it may be better to position it at the beginning as part of the Foundations of the Treaty. But the centerpiece of the new Title should, in any event, include the basics of a Community (and Union) Human Rights policy as we find in other Titles such as the Environment.
The need for a Treaty amendment in order to have such a policy was claimed by the Commission as recently as April 1989 when it stated that A[i]n the absence of a mandate from the Treaties or from the Member States, the Commission cannot develop a Community policy on human rights in the full sense of the term." Whilst one could argue that the powers could be implied, in the "current political climate" it would be better to have an explicit mandate.
Any such Treaty Mandate should emphasize that the policy is to be operative In the Field of Community Law so that there can be a reasonable demarcation of the reach of such a Community policy into Member State activities. The goals of such a policy would not be to place new restrictions on, or create new obligations for, the Member States but to be confined to human rights in the sphere of application of Community law. The Court, contrary to some claims, has been rather prudent in the extent which it has defined the field of Community law for the purpose of human rights, and has limited its impact over Member States mostly to situations where the Member States are acting as the executive branch of the Community.
What goals for a Community Human Rights Policy or Action Plan?
The principal goal would be to design, develop and adopt, all those devices -- procedural and institutional -- which mean that rights would not only enjoy remedies within the existing framework of Community judicial review, but would be rendered truly effective and a common part of Community life. The Community should not therefore simply give attention to the variety of new fields of protection and new rights, but to a deepening and an actualization of rights already in place. The goal would be of bringing the rights to Community citizens and residents.
It could be for the Commission, as the Guardian of the Treaties, to take the lead in moving towards this deepening of protection. This would involve expanding the current Commission human rights arrangements from a Service or Division to a full Directorate or Directorate General with a proper Commissioner portfolio and all the institutional paraphernalia. It would be costly, but do human rights require less pro-active protection than, say, Competition...? Of course, one should not give the impression that human rights are not part of the Commission's daily work. Many of the Directorate Generals work in fields which deal with issues of Human Rights with classical or new and in some areas truly innovative work has been done, for example in the field of sex discrimination. For its part, the Legal Service will have a constant overview of possible breaches as regards proposed major legislation. But the efforts are diffuse and fragmented with no coherent overall guidance so far as we can tell.
Alternatively, it could be thought that charging the Commission with this task would be akin to allowing the cat to guard the cream. In that case one may consider one of the new independent agency formats as suitable for all or part of the Human Rights portfolio.
What are the kind of items which may be part of a pro-active Human Rights Policy which go beyond simply adding layers of judicial protection or increasing the catalogue of rights judicially protected?
In the following we are borrowing, selectively, from the American experience in this field. The late 50s and the early 60s (and continuing into the 70s and 80s) saw in the United States the enactment of a variety of Civil Rights Acts. The term civil rights should not mislead. For the most part, American civil rights correspond to what is understood in Europe as fundamental human rights.
One feature of these acts was the realization that it was not sufficient, in a large, diverse and complex society as the United States, to put on the statute book an ever increasing number of rights and legal remedies, but that it was imperative to ensure an institutional back up which would have as its task to ensure:
A constant flow of accurate information about the realization of the normative programmes (information function)
A continuous effort of self-reflective re-evaluation of the impact of programmes as regards both their content and execution with a view to amendment and improvement (active feedback and self correction function)
A specific active agency which would seek the legal enforcement of human rights policies, rather then simply leaving the system to rely on the initiative of victims of violations. This was the result of the realization that frequently the victims of human right violations were the least capable of vindicating their rights through the traditional legal system.
The following are brief descriptions (taken from the US Government Manual) of some of the more interesting agencies created over the years.
The [USA] Commission on Civil Rights
The Commission holds public hearings and collects and studies information on violations of human rights (especially in the field of Equal protection, voting rights, administration of justice, education, housing etc.)
The Commission makes findings of fact but has no enforcement authority. findings and recommendations are submitted to the President and Congress, and many of the Commission's recommendations have been enacted into statute. The Commission evaluates federal laws and the effectiveness of Government ... programmes. It also serves as a clearinghouse for civil rights information.
It has several regional divisions which also receive complaints from the public.
It is apparent that the substantive activities of the US Commission on Civil Rights were and are conditioned by the American experience. Many of their fields of concern would not be appropriate to European conditions. In some cases because they do not fall within the field of application of Community law, in other cases because the social problems of Europe are different.
But if one takes, to give but a few examples, the situation of migrant workers, or even more pressing the situation of non-Community workers which do come, fully or partially, within the field of application of Community law, it is possible that the American model could be of utility and worth considering in the European context.
It is of course true that in some areas in the Community, like Sex Discrimination, Commission services which fulfill similar tasks exist. The question is whether the idea should be generally institutionalized and whether formalization of this function would not enhance the seriousness, prestige and ultimately the effectiveness of the exercise.
The [USA] Civil Rights Division of the Department of Justice.
Headed by an Assistant Attorney General of the United States -- one of the most prestigious, powerful and sensitive appointments in the American Government -- the Civil Rights Division was established in response to the need to secure effective Federal enforcement of civil rights. The Division is responsible for enforcement of a wide array of federal statutes in the field of human rights. The Division is composed of eight major organization units and an administrative component. Each of the units has litigating responsibility over a specific human right area. In addition to litigation, the Division conducts investigations and negotiations. One unit has the sole responsibility of coordinating the activities of all related federal agencies in the field of civil rights.
Again, an ape like copying of the American model would be foolish for the reasons explained above. But it would be equally foolish to believe that current Community structures are adequate. The Commission and its legal service have played a capital role in ensuring compliance by Member States with Community law -- through, for example, the 169 procedure. There have, over the years been hundreds of initiations of 169 procedures. Many were resolved at the stage of the initial seizing, some at the stage of the Reasoned opinion and in a great deal of cases the matter was brought before the Court which in the overwhelming majority of cases has vindicated the position of the Commission.
By comparison, the Commission has initiated remarkably few actions against other Community institutions under Article 173 and remarkably few actions have been initiated against the Commission and Council by individuals under Article 173. To be sure, this is partly because of the restricted locus standi afforded individuals; and it is also true that there has been an increase in the number of 177b actions by individuals implicating Community measures.
The main problem, in our view, is that as presently constituted the Commission and its legal service, suffers from a serious conflict of interest. The very same Commission and legal service charged with the guardianship of the Treaty is also the main legislator and Community executive and administrative branch. Thus, whereas the services and the Commission can act, and do often act, with vigor when it comes to challenging the Member States, it is understandable that the same vigor cannot, and is not, applied when it comes to self-scrutiny and self-criticism. How could it be otherwise. It is the ancient dilemma of who will watch the watchmen.
Two policy issues thus present themselves in this context.
The first is whether the Community should, following the American experience, create a structure which emulates in some way the American Human Rights division. If the reply is positive the second question is the relationship such a unit would have to the overall structures of the Commission.
Like the American model, it is clear that such a structure could remain within the Commission organigram answerable to the President and/or the Director General of the Legal Service. But at the same time, by an act of "self-limitation" it should be guaranteed maximum independence so that its activities, investigations, negotiations and litigational decisions are subject to as small a degree as possible to the conflict of interest described above. Exactly what form such a unit would have is premature to speculate.
Subject Matter Services: The [USA] Equal Employment Opportunity Commission; Community Relations Service; Employment Standards Administration
These are but a few examples of American agencies in one field which are responsible for the monitoring, execution and enforcement of specific policies which have a "human rights" dimension as well. Given the difference in context between Europe and the United States it would not be useful to elaborate on their precise task and functioning. We mention them for another reason. At first sight it might seem that there is here an overlap of functions between these specific agencies and the more general ones described above. This is, to some extent, true. But as is the case in the Community, the USA moved in the field of "civil rights" (as they are called there) beyond the classical overarching rights of non-discrimination into a variety of "positive" areas in fields such as the labour market, the environment and the like.
It was felt that in relation to each of these areas it was important to have separate units, often tied to the Department of Justice, which would have as the primary function supervision and enforcement. Problems of overlap are solved by coordination units, but the realization was that it was probably unwise to have one service responsible for legislation and enforcement.
As mentioned above, the Commission is no slouch, in some fields, in its sensitivity to enforcement. But the feeling is that these efforts are somewhat ad hoc, differ radically from one service to another and also suffer from problems of conflict of interest. It is no secret for example that in the last few years one experienced certain tensions between services responsible, for example, for legislation in the field of free movement of goods and services responsible for, say, consumer protection. Institutional structures can help resolve these inevitable tensions.
All these proposals, and many more could be given, are no more than examples trying to illustrate that the creation of a new Human Rights Title in the Treaty to further human rights policy may have some meaning. Such an amendment would involve the Community in taking an active and reflexive rather than reactive approach to human rights. Active in the sense of somewhat aggressively seeking to give effect to norms. Reflexive in the sense of understanding the these norms must be applied vigorously also to the very institutions which enact them.
Most important would be a commitment to a Policy of Human Rights - limited to the sphere of application of Community law - which would enable the Community and Union to narrow or close the Access-to-Justice gap in the current architecture of Rights.
The classical discussion of internal hierarchy has two interconnected dimensions - Constitutional and Institutional. The first is concerned with the per se need to rationalize the current hierarchy of norms within the Community legal order. The second is concerned with an alleged rationalization of the decisional process.
For an extensive survey of the debate, an analysis of the arguments presented, and a full bibliography we refer the reader to the relevant annex to this study.
Our view is that the existing hierarchy as well as the Article 189 classification of Acts are highly irrational and could, functionally, benefit from decisive revision. The current hierarchy is highly formal. The Treaty is the Higher Law of the system, requires a full IGC to be modified and trumps all conflicting secondary norms. And yet, the Treaty includes endless trivial norms and annexes which bear no relation to their high formal elevated status. By contrast, within Community secondary law, there is a clear and recognized need to have hierarchies: The framework legislation on Anti-Dumping should be normatively superior to the acts which implement and execute it. This is true for Rules of Origin and most other regulatory regimes. And yet, when the acts of execution cannot take the form of a Decision because, say, of their generality, both framework legislation and implementing and executing measures all use the same formal instrument, the Regulation. Of course the Court and the system have developed a "common law" hierarchy but that is a second best solution.
We also believe that Article 189 has clearly outlived its classificatory utility. For example, the highly artificial distinctions drawn -- in relation to the direct effect of norms -- between Regulations and Directives have become a source of arbitrary discrimination among the subjects of Community law. The policy objectives which the distinction between Regulations and Directives sought to achieve can be better accomplished by, say, "framework laws" which would define objectives and set targets for Community Institutions and Member States and might even specify certain legal results - such as automatic internal effect - if Institutions or States fail to implement them.
The proposal, adopted in the defunct EP Draft Constitution of the European Union, would re-organize the "acts" of the Union in an hierarchy comprising of Constitutional Law, Organic Laws (regulating in particular the composition, tasks or activities of the Institutions and Organs of the Union) and ordinary Laws. Ordinary laws could be of the "framework variety."
In addition, Institutions would be empowered, under the Laws of the Union, to adopt Implementing Regulations and Individual Decisions.
There can be many variations on this basic classificatory regime.
Our view is that whatever the technical problems associated with a move to a more structured hierarchy (discussed in the annex), and despite the inevitable imperfections of any new system, such a move will be a net gain over the Status Quo.
The real controversy about, and objections to, proposals such as those put forward in the Draft Constitution Project relate to the Institutional and symbolic implications of these proposals. Each of these proposals regards them not only as a means to achieve constitutional rationality in the hierarchy and classification of Community measures but also as a means for reassigning decisional responsibility. Constitutional laws would require the heaviest procedure and in all circumstances would involve national constitutional procedures. The debate here concerns whether modification of constitutional laws - i.e. the Treaty itself or what becomes of it - should in all circumstances require unanimity. As the size of the Community grows it becomes more and more difficult to defend a unanimity rule effectively making all constitutional change hostage to any particular Member State.
Organic Laws and Ordinary would, in most proposals, be subject to "standard" Communitarian procedures whatever these turn out to be but in all circumstances respecting the basic formula of <Commission proposes, Council-Parliament dispose.>
The deepest controversy concerns the divide between laws and implementing and executing measures. The direction of most proposals is essentially to assign those functions to the Commission with various levels of involvement and control by Parliament and Council. This would mean a restructuring of the Comitology process in ways which would give the Commission a more decisive say and which would put Council, Member States and Parliament in more of an oversight role rather than active decisors.
In most Member States with which we are familiar some such model exists. Such a model is thought not only to be the most functional, but, in its respect for the concept of separation of powers, between legislative and executive responsibilities, to enhance the democratic architecture of governance. Inevitably, in many systems, boundary problems arise: There will always be measures which come close to the line and in relation to which it is difficult to decide whether they are legislation or implementation. There is a related problem of who gets to decide: Can the legislature decide what is to be considered as legislation and implementation and de facto and de jure arrogate to itself implementing capacity or is the division of functions to be regarded as constitutional and, for example, subject to judicial review? The opposite problem has also taxed many political systems and lined the pockets of many lawyers: Can the legislature delegate to the executive legislative power (thus, for example, escaping parliamentary controls).
These boundary problems are sometimes raised as reasons for not engaging in a revision of the hierarchy and classification of Community norms. The problems are real and, especially in the matter of delegation, of consequence.
In the Community and Union, delegation has a particular sensitivity since in most areas the governments of the Member States are the principal executors of Community policies. The extensive possibility of delegation becomes, thus, not only an issue of accountability but of integration values too.
But the veritable objection to a revision of Internal hierarchy of norms is really a matter of symbol and power and not in the jurisprudential problems real as these may be.
The symbolism is clear: The proposals for shifts in the hierarchy of norms gives Community governance a much greater Statal appearance. This is tightly connected to the power argument - a fear of, or resistance to, the strengthening of the power of the Commission which will, in some respects, undoubtedly be the case.
This dilemma is not susceptible to "scientific" evaluation. It is a matter of political choice. We would simply say that no one should be made to think that the jurisprudential problems are really, in and of themselves, so grave as to justify the opposition to these projects. If it works- do not fix it. It does not work. But there is a real question whether the price of achieving Constitutional coherence justifies empowerment of the Commission. One way out is to adopt a scheme such as the one proposed in the Draft Constitution proposal, but leave the decisional apparatus intact. In other words, re work the classification and aspects of the hierarchy without fundamentally changing the Institutional balance.
This will represent a jurisprudential improvement and, in our view, should not be opposed by those who would have preferred to tie the shift in Hierarchy to an Institutional change as well.
But there is another dimension to the debate which, in our view, is too often neglected. Whatever the allocation of power between Council, Commission and Parliament in the Implementation.
In some respects the world of Infranationalism of which Comitology is a central artifact constitutes a political black hole. As will be seen in the Infranationalism annex, we could not find two studies or two official statements which could even agree on the number of Committees in existence and their precise mode of operation. It is clear to us that the three formal models of Comitology do not even begin to capture the reality of power disbursement, access and procedural fairness in that black hole.
The most significant "constant" we could find across the Comitology board was the emergence of Networks the interaction of which describes and differentiates among Committees better than any formal description. The actors in the networks would be not "The" Commission, but Commission officials, not "The" Government of a Member State but national civil servants, and then a wide variety of "lobbyists" and interest groups. On one level it cannot be otherwise: In his remarkable work, José de Areilza articulates this phenomenon as the new "management" form of governance which transcends the international and supranational forms. This is the Administrative State transferred to the European level.
What is troubling, and what should, in our view, be the concern of Parliament is the unregulated nature of this world of regulators.
One could, of course, continue this list. Transcending these specifics which are so essential in the impressive array of fields in which Comitology operates, it is clear that there is not even a shared and articulated understanding of what, say, the role of the Commission is in these fora: Is it an interested party trying to advance its preferences? Is it a "neutral" moderator trying to manage a forum which would produce the best information and interest representation for an eventual informed policy decision? Should it be pro-active in seeking out potential societal interests? It is also clear that there is not a shared ethos of what constitutes "good administration" in this field of infranational regulatory activity.
Likewise, it is not at all clear, as emerges from the work of the British scholar Carol Harlow whether the rules of access to the European Court of Justice, many of which articulated in the earliest days of the Community, are suited to this new, pervasive and hugely critical regulatory apparatus. We certainly do not wish to side with any partisan battles within the Community. Without endorsing its views or vouching for the veracity of all their factual claims the materials produced by, say, the Land Use and Food Policy Intergroup at the European Parliament offer an indication of how consequential Infranational decision making can be at multiple levels and how difficult it is, compared even to the Supranational and Intergovernmental levels to track and impact its outcomes.
There is a serious debate about the value of and/or need for a Codification of Community administrative law. We are agnostic if not skeptical. But the issues which such a would-be codification would have to address are real and pressing. They seem to us far more real and pressing then the formalistic issues of reshaping the Internal Hierarchy of norms and even the positioning of the Commission within that Hierarchy.
The most important and, in our view, far reaching proposal to emerge from this Study is probably the most simple one. It probably does not require a Treaty amendment and can be adopted by an Inter-Institutional Agreement among Commission, Council and Parliament. It could be put in place in phases after a short period of study and experimentation and be fully operational within, we estimate, two to three years. We believe that if adopted and implemented it will, in the medium and long term, have a greater impact on the democratization and transparency of European governance than any other single proposal currently under consideration by the IGC.
Even if it does not require a Treaty amendment we recommend that it be part of the eventual IGC package as a central feature of those aspects designed to empower the individual citizen.
We are proposing that - with few exceptions - the entire
decision-making process of the Community, especially but not only Comitology -
be placed on the Internet.
For convenience we have baptized the proposal: Lexcalibur - The European Public Square.
We should immediately emphasize that what we have in mind is a lot more than simply making certain laws or documents such as the Official Journal more accessible through electronic data bases.
We should equally emphasize that this proposal is without prejudice to the question of confidentiality of process and secrecy of documents. As shall transpire, under our proposal documents or deliberations which are considered too sensitive to be made public at any given time could be shielded behind "fire-walls" and made inaccessible to the general public. Whatever policy of access to documentation is adopted could be implemented on Lexcalibur.
Before we explain the implications, virtues and dangers, of this proposal it would be best to try and describe how it would work. The key organizational principle would be that each Community decision making project intended to result in the eventual adoption of a Community norm would have a "decisional web site" on the Internet within the general Lexcalibur Home-Page.
The content of each decisional site would be a matter to be decided upon and would, inevitably, differ according to the subject matter. But in principle it would enable (virtual) visitors to the site to
identify the scope and purpose of the legislative or regulatory measure;
the Community and Member States persons or administrative departments or divisions responsible for the process;
the proposed and actual time table of the decisional process
access and view all non-confidential documents which are part of the process
under carefully designed procedures directly submit input into the specific decisional process.
We have prepared a simulation of Lexcalibur and would be available to demonstrate it.
There is much technical detail which it is not necessary to describe here. We would want to emphasize that we do not believe that this proposal would increase further the administrative burden of Community Institutions and their administration. After all, already now, within each Institution there are officials responsible for every legislative or regulatory procedure, which take care of the receipt and circulation of documents and their communication, where necessary to other Institutions (and even to the public, on occasion…). In fact, our prediction is that this proposal would eventually not only transform and radically improve the interaction of the public with the European process of governance, but internally improve and facilitate that process itself.
The rationale of this proposal seem to us almost self-evident. The Internet with its capacity both for the pure distribution of a huge amount of information to a large public and a quick and relatively cheap interactive participatory exchange process may provide far reaching improvements to the current lack of accountability and transparency within the Community.
But it is important to emphasize that our vision is not one of "Virtual Government" which will henceforth proceed electronically. The primary locus and mode of governance would and should remain intact: Political Institutions, meetings of elected representative and officials, Parliamentary debates, media reporting - as vigorous and active a Public Square as it is possible to maintain, and a European Civic Society of real human beings.
The huge potential importance of Lexcalibur would be in its Secondary Effect: It would enhance the potential of all actors to play a much more informed, critical and involved role in the Primary Public Square.
The most immediate direct beneficiaries of Euro Governance on the net would in fact be the media, interested pressure groups, NGO's and the like. Of course also "ordinary citizens" would have a much more direct mode to interact with their process of government.
This system, by showing information and activity almost in real time, would increase transparency and hence the possibility of monitoring on all levels. National parliaments and the European Parliament will be able to follow the Community process much more closely and control, in the former case, the work of national officials and ministers within the Council and in the latter the work of the other Community institutions. Individual actors - private citizens, companies and interest groups - would have an improved bases for addressing the national governments, parliaments and representatives on the European level.
Providing a greatly improved system of information would, however, only be a first step of a larger project. It would serve as the basis for a system that allows widespread participation in policy-making processes through the posting of comments and the opening of a dialogue between the Community institutions and interested private actors. Such a system obviously needs a clear structure in order to allow a meaningful and effective processing of incoming information for Community institutions. Conceivable would be, for example, a two-tier system, consisting of a forum with limited access for an interactive exchange between Community Institutions and certain private actors and an open forum where all interested actors can participate and discuss Community policies with each other. This would open the unique opportunity for deliberations of citizens and interest groups beyond the traditional frontiers of the nation state, without the burden of high entry costs for the individual actor.
Using the internet for improving public participation and transparency elegantly captures a whole series of problematic issues: (1) In contrast to the parliamentary process where individual preferences concerning particular issue areas have to be subjected to a broader political process, in a internet based system as envisaged here the preferences would fully come to bear. (2) Concerns, suggestions, approval or critique can be expressed instantly and specifically. (3) It is an easily accessible system (4) its implementation neither requires a Treaty amendment not excessive financial resources (5) It is a system with utmost transparency. (6)There is arguably no better way of providing a large public with detailed information on a huge variety of issues, without considerable time lags between an action and its perception by the public.
Access to the Internet would, of course, itself become a source of unequal power. But already now that problem is quite acute and the already existing diffusion of the Internet can only improve the current situation. We expect this diffusion to grow so rapidly as to make this problem relatively minimal. Ultimately the net will be more of an equalizer than a differentiator.
As mentioned we foresee administrative advantages also for the working process of the Community institutions themselves: first they could use the system also as a planning, organization and communication device for their inter- and intra-institutional relations. This would lower their transaction costs considerably. Secondly, the distribution of documents could be greatly facilitated and improved. Texts could be changed easily without printing the same document in yet another version again and again.
The idea of using the internet for improving the legitimacy of the European Union may seem to some revolutionary and in some respects it is.
Therefore its introduction should be organic through a piecemeal process of experiment and re-evaluation but within an overall commitment towards more open and accessible government.
A participatory system via internet requires particular efforts by the Community and the member states of a certain kind. Certain aspects of the procedures may require eventually to be rooted in law - as essential procedural requirements.
It would be indispensable to increase the availability of computer technology for the public. A special focus should hereby be the availability of an internet workstations in public building, such as libraries and town halls. This would have to be supported by educational programs that teach the use of computers and the relevant software.
In the long run, a participatory system partly based on the internet will have significance far beyond the mere issue of Union governance. One possible side effect might be in helping to reduce parts of the technology gap between Europe on the one hand and North America and East Asia with Japan at the center on the other. Economic competitiveness, technical innovation and the creation of new jobs is in both areas closely connected to the use of computers and computer-based communication, fields where Europe is still lagging far behind. A participatory system based on computer-technology might well influence the productivity, employment and thus economic prosperity of the European Union.
There are dimensions of the new Information Age which have all the scary aspects of a "Brave New World" in which individual and group autonomy and privacy are lost, in which humanity is replaced by 'machinaty' and in which government seems ever more remote and beyond comprehension and grasp - the perfect setting for alienation captured most visibly by atomized individuals sitting in front of their screens and "surfing the net."
Ours is a vision which tries to enhance human sovereignty, demystify technology and place it firmly as servant and not master. The internet in our vision is to serve as the true starting point for the emergence of a functioning deliberative political community, in other words a European polity cum civic society.