DOCUMENT A/1778

4 June 2002

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The role of national parliaments in the European Union and more specifically in the ESDP - a contribution from the Assembly to the Convention

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Document A/1778

4 June 2002

The role of national parliaments in the European Union
and more specifically in the ESDP -
a contribution from the Assembly to the Convention

REPORT¹

submitted on behalf of the Political Committee²
by Mr Eyskens, Rapporteur

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¹ Adopted in Committee by 14 votes to 3 on 6 May 2002.

² Members of the Committee: Mr Marshall (Chairman); MM Behrendt, Blaauw (Vice-Chairmen); Mr Baumel, Mrs Bolognesi, MM Clerfayt, Dias, Mrs Durrieu, MM Ehrmann, Eyskens, Floros, Guardans I Cambó, Haack, Hancock, Hordies, Hornhues, Lacão, Lemoine, Liapis, van der Linden, Lloyd (Alternate: Vis), Martínez Casañ, Masseret, Pangalos, Mrs Paoletti Tangheroni, MM Piscitello, Provera, de Puig, Puche Rodríguez, Rizzi (Alternate: Malgieri), Schmitz, Sterzing, Timmermans, Lord Tomlinson, Mr Wilkinson, N ..., N ...

Associate members: Mr Akçali, Ms Akgönenç, MM Andican, Eörsi, Mrs Grabowska, Ms Gülek, MM Kaminski, Kasal, Kobielusz (Alternate: Wenderlich), Lobkowicz, Marthinsen, Pálsson, Pokol, Width, Wojciechowski (Alternate: Szczesny Zarzycki), N .., N ...

N.B. The names of those taking part in the vote are printed in italics.

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RESOLUTION 109¹

(i) Fervently hoping that the Convention on the future of the European Union will succeed in adopting appropriate proposals for making progress on resolving issues raised by the future development of the European Union including in particular:

(ii) Desirous that in the course of its deliberations the Convention address the democratic principle of the separation of powers in the European Union;

(iii) Advocating, in application of that principle, that the member governments meeting in the Council should progressively concentrate on their decision-making and the Commission on its role of providing impetus and executing decisions;

(iv) Desirous that the power to legislate at European level and functions of general supervision of EU policy as determined by the European Union's executive power should in the future be assigned to parliamentary bodies forming a bicameral system;

(v) Desirous also that the Council's intergovernmental competence should be counterbalanced at European level by interparliamentary competence exercised by a body of elected national representatives;

(vi) Recalling that EU integration will not be complete until the Union decides to make a common defence a part of it,

1. Include in its debates a discussion of the following proposals:

2. Include on its agenda an examination of the options for including a common defence in the Treaty on European Union and the implications thereof.

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EXPLANATORY MEMORANDUM

1. This report sets out to provide both a constructive contribution from the Assembly to the work of the Convention on the future of the European Union, and a fund of information for parliamentarians in their debates and discussions with their governments, with other parliamentarians, within their political groups, with members of the Convention and with the public at large.

2. In the Laeken Declaration on the future of the European Union, the European Council decided to set up a Convention on the future of the European Union to prepare for the forthcoming Intergovernmental Conference which the Nice Summit decided would be convened. According to the Declaration, "it will be the task of that Convention to consider the key issues arising for the Union's future development and try to identify the various possible responses".
3. The point of departure for the work of the Convention are the four issues the European Council raised at the Nice Summit (Declaration No.23):

4. In this context, the Laeken Declaration put forward fifty or so specific questions on which the Convention should concentrate its work.
5. However the questions raised at Nice and Laeken must not be regarded as exhaustive and do not limit the subjects the Convention is to discuss.
6. While this report will concentrate more particularly on the first and fourth questions and on the abovementioned Nice Declaration, it also provides food for thought about matters not raised in Laeken but which, in the Assembly's opinion, it will be essential for the Convention to discuss.
7. As far as the role of the national parliaments in the ESDP is concerned, attention is drawn to the motion adopted at the close of the Conference on the parliamentary dimension of the European Security and Defence Policy, which was held in Brussels on 6-7 November 2001 and was attended by representatives of the European Parliament, the WEU Assembly and the parliaments of the 15 EU member states.
8. The text of the motion states inter alia that:

9. The main objective of this report is to draw up appropriate proposals in this context for submission to the Convention. However, your Rapporteur is convinced that it is essential to place this specific problem in the more general context of the collective role of national parliaments in a future enlarged European Union, and therefore also to examine the basic problems besetting European integration, which are not directly linked to security and defence.

10. It is not possible to examine the role the national parliaments should play in the European Union both individually and/or collectively without reaching agreement on two fundamental questions: (i) how are the executive bodies in the EU to develop and be organised and (ii) who is to represent the interests of the member states at European level?
11. The development of the European executive will depend in large measure on whether it is possible to agree on the political purpose of the European Union.
12. When Joschka Fischer referred in his May 2000 speech in Berlin to the need for the European Union to become a real federation, he rekindled the debate on the purpose of the European Union. There are two main lines of thinking in this area, with of course some variants: the Community approach, which involves setting up a genuine European federation, and the intergovernmental approach based on cooperation between member states possibly with a view to arriving at confederation. Attempts at compromise are also proposed in the form of a "federation of nation states" despite the fact that this is a contradiction in terms.
13. The greatest support for a federalist position is to be found in Germany where there is little disagreement between the country's two largest political parties in this respect. The Social Democrat Party (SPD) programme unveiled on 22 November 2001 at the Party Conference in Nuremberg advocates a European Commission with strong executive powers, a position confirmed by the German Chancellor, Gerhard Schröder, addressing the Bundestag on 12 December 2001. On this point a European People's Party (EPP) working group on European policy sets out a more specific position in a paper entitled "A Constitution for a Strong Europe"², also adopted on 12 December 2001, which proposes that "the Commission has to be developed into the real executive of the Union."
14. According to that rationale the European Commission would eventually become a sort of European "government" in a fully communitised³ system. However, the present firm trend towards reinforcing the intergovernmental system in the EU, strengthening the Council's executive role and reforming its working practices to that end do nothing to encourage that approach⁴.
15. On this issue the French and British positions are very similar in that both countries defend the principle of the sovereignty of nation states, and this does not apply solely to foreign policy, security and defence. According to this concept decisions should be taken on the basis of intergovernmental cooperation and it is therefore the Council which should continue to have overriding responsibility as the decision-making and executive organ.
16. What direction is the European Union going to take? The answer depends on whether Europeans will agree that they want to move further towards the Community method by including in it both or either of the EU's second and third pillars, which have so far been subject to the intergovernmental system, or whether they decide instead to maintain and even reinforce that system at least in a specific number of areas. This is one of the fundamental problems to which the Convention should try to find an answer.
17. However, independently of the problem of how to define the unique character of the European Union as it exists at present and of how it should develop, it can already be said at this stage that if it is to work properly it cannot be governed by a "unitary" system but by a system that makes due allowance for all the diverse and specific characteristics of its member states and its regions.
18. This report will therefore study models that could be proposed for the European Union's political integration, together with the consequences they would have for the organisation of executive powers and the parliamentary dimension.

1. The delimitation of competence in a Community system

19. For the purpose of explaining the different categories of competence that currently exist in the EU, this report adopts the terminology used in the note of 28 March 2002 issued by the Convention Praesidium to members of the Convention, which describes the current system for the delimitation of competence between the European Union and the member states.

20. Let us assume that foreign and security policy and defence policy (forming the second pillar), and even a common defence in the proper sense of the term, together with the policies forming the third pillar were among the areas in which a fully communitised European Union would have exclusive competence. In such a model it is plain that the decision-making and executive powers would lie exclusively with an EU body chosen to exercise the function of a European "government", i.e. either the European Commission or a Community body that would replace it. In such a system what role would remain for the member states and who should be appointed to represent their interests? As regards the policies that today go under the names of CFSP and ESDP, they would be transformed from a "common" (i.e. intergovernmental) policy into a single (Community) policy. The member states would no longer have any competence for managing that policy because it would come under the exclusive competence of the European Union. In that case retaining the Council as an executive body would no longer serve any purpose other than that of harmonising the policies of the member states among themselves and with the Community power-holding body.
21. However, it has to be realised that there would in fact be very few areas of exclusive competence and it is unrealistic to take the view that in the near future the CFSP and ESDP could be included in that category. Even the most fervent proponents of bringing the EU's second and third pillars into the Community system have doubts on this score⁵. In point of fact any issue that affects the member states' external security is so sensitive that even the most ardent federalists want the member states to keep at least a substantial part of their decision-making powers in this area.

22. Still in the context of a Community model, let us now take a case in which the second (CFSP and ESDP) and third (police and judicial cooperation in criminal matters) pillars have been brought within the Community system, but with the difference compared with the model discussed in the previous section that in these areas the Community power-holding body shares competence with the member states, while retaining the main decision-making and executive powers. It is interesting to note that in its description of the current system for the delimitation of competence between the European Union and the member states, the Convention Praesidium has no hesitation in placing Title V of the TEU (common foreign and security policy) - i.e. the CFSP, with the exception of defence - and Title VI (police and judicial cooperation in criminal matters) in the category of shared competence in the European Union, thereby including them in a system which for the time being exists only within the Community pillar. What role would remain under such a system for the member states?
23. The answer depends on how decision-making powers are transferred to the Community power-holding body. It is clear that the greater the extent of the competence assigned to the Community power-holding body, the fewer the powers that will remain with the member states. However, it can be assumed that in view of the diverse and specific characteristics of the European Union, the member states will always retain a minimum of competence and decision-making power in areas that are as sensitive as security and defence, even under a Community system⁶.
24. For as long as it is considered necessary to maintain a Council as a decision-making and executive body alongside a Community power-holding body, either to defend member states' interests in the European decision-making process or to harmonise that body's policies with those of the member states, it will not be possible to establish at European level a single institution exercising the functions of a "government". There will therefore continue to be two sorts of executive body with all that implies, particularly when it comes to deciding how democratic scrutiny of the European executive power should be organised. This question will be examined further on.
25. According to the system set out in the note by the Convention Praesidium referred to earlier, a further category is that of complementary competence. In certain areas the member states would retain the right to take the main initiative with the EU intervening only for the purpose of supplementing any action on their part. In such a system there would also be a dual executive, the difference compared to the system discussed above being that the main decision-making and executive power would still lie with the member states whereas the powers of the Community power-holding body would be very limited.
26. Finally, a comprehensive examination of this issue must also mention the areas in which the member states have exclusive competence. No European executive power has the right to intervene in such areas.

2. The delimitation of competence in an intergovernmental system

27. The present-day situation in the EU is a mixed one in which all the areas covered by the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community come under the Community system and form an integral part of the Treaty on European Union, whereas the provisions of Title V of the TEU concerning a Common Foreign and Security Policy (CFSP) and those of Title VI relating to police and judicial cooperation in criminal matters are mainly subject to the intergovernmental method.
28. According to the Treaty of Nice, the new provisions on a European Security and Defence Policy (ESDP), which primarily concern all the areas concerning Petersberg missions, responsibility for which the WEU member countries have transferred to the European Union, are also to be included in the intergovernmental system and even in Title V of the TEU.
29. With a view to ensuring consistency between the EU's activities in the Community and intergovernmental pillars, Article 3 of the TEU states that "the Union shall be served by a single institutional framework (...) while respecting and building upon the acquis communautaire". It makes the Council and Commission responsible in particular for ensuring the consistency and continuity of the Union's external activities as a whole in the context of its external relations, security, economic and development policies, and specifies that they are to cooperate to that end.
30. As far as the CFSP is concerned, it is the European Council, assisted by the High Representative for the CFSP, which has the central role as a decision-making body and a power defining the principles and general direction of that policy. The High Representative for the CFSP must contribute inter alia to the execution of policy decisions whereas responsibility for implementing Council decisions lies with the Presidency.
31. Although in this area the Commission has no power of decision of its own, as it does under the Community pillar, it is nevertheless involved in it in a number of ways.
32. It is above all on financial matters that the Commission can exert its influence in the CFSP framework since administrative and operational expenditure incurred in its implementation is charged to the budget of the European Communities, with the exception of expenditure arising from operations having military or defence implications. It must be remembered that under the TEU the Commission is responsible for implementing the Community budget (Article 274 of the Treaty establishing the European Community).
33. It emerges from all this that even in a purely intergovernmental area such as the CFSP (and now the ESDP), in which the executive power is held exclusively by the Council, the Commission has a considerable role to play. In contrast, it has to be borne in mind that in areas that are fully communitised, the Council has retained, as borne out by the TEU currently in force, its decision-making power (Article 202 of the Treaty establishing the European Community). This shows that as far as executive powers are concerned a dual system has been created in the Community and intergovernmental pillars, and this cannot fail to have repercussions for the parliamentary dimension.

34. In areas in which the intergovernmental method is applied, the power to take decisions is the prerogative of the member states and the Council has to adopt decisions by unanimity, save in the case of a few exceptions which do not, however, concern security and defence issues. Although the member states have not given the EU its own legal personality, they have nevertheless transferred a number of powers to it.
35. However, it is the member states, through their governments, which retain the power to decide what direction EU policy should take and how it should be implemented. To this end they have recourse to the European Council and the EU Council in its various forms, which constitute the main decision-making and executive body, whereas the European Commission's remit is very limited.
36. In view of the difficulty in deciding which body should constitute the future "government" of the European Union, there is a strong likelihood that compromise solutions will be proposed and implemented in which there will be an even greater overlap of competence between the Community and intergovernmental authorities. But irrespective of which side will win the day between those who are in favour of a stronger executive role for the Commission and those who advocate a stronger role for the Council, the European Union will continue to have a twofold system in which the Commission and the Council will share the executive function.

37. The Nice Declaration invited the EU member states to examine "the role of national parliaments in the European architecture". The term "European architecture" covers a whole series of aspects but the essential point is the role of the parliaments of the member states within the European Union. In this respect the Laeken Declaration raised a number of questions.
38. Should the national parliaments be represented in a "new institution" alongside the Council and the European Parliament? Should they play a part in European activities for which the European Parliament has no remit? Should they concentrate on the delimitation of competence between the EU and the member states, for instance by exercising preliminary scrutiny over compliance with the principle of subsidiarity?
39. The crux of the matter is whether the national parliaments should play a collective role vis-à-vis the EU institutions or whether their function should rather be confined to individual scrutiny over their respective governments⁷.
40. Within the context of this report one of the first questions to examine is whether the role of national parliaments in the ESDP is part of the more general problem posed by Declaration No. 23 adopted in Nice, or whether it constitutes a separate problem which requires a separate solution. We therefore need to study what part the national parliaments could play in general in the various models that could be options for the European Union's political and legal integration in the future.

1. National parliaments in a Community system

41. In order to decide how to organise the parliamentary dimension of a system of this sort, it is important to remember that the activities of a parliamentary body comprise two main components:

42. As regards the legislative work in a fully communitised European Union, the European Parliament should of course be given full co-decision rights over legislation and should even become the principal legislative body. However, even a fully communitised EU will not be a unitary organisation but will take the form of a system that should take account of the variety and specific nature of its constituent parts. This means that European legislation could not be the exclusive responsibility of the European Parliament and that there will therefore be a need for co-legislation on the part of a body representing the member states, as is currently the case.
43. This raises the question of who should represent the member states as co-legislator at European level.
44. Until now the Council has carried out the task of legislator at that level, jointly with the European Parliament. Among other proposals, one that has been submitted by the German Social Democrat Party is that the Council should be transformed into a second chamber in areas in which it legislates. In contrast the German Christian Democrats propose, in a document adopted on 26 November 2001, that legislation should be the joint task of the Council and the European Parliament.
45. On this point a European People's Party (EPP) working group on European policy has taken a stronger line since it proposes that:

46. There is no doubt that this is a fundamental question which the Convention will have to examine: is there any support for the idea that in the European Union of the future the Council can act as both an executive and a legislative power as it does at present on the basis of the existing treaties? Leaving aside the EPP position, very few politicians or experts on constitutional affairs have called into question the justification for the Council to exercise these two roles. One of those who has is Alain Lamassoure, a Member of the European Parliament and of the Convention. In 1994⁹, when he was the French Minister for European Affairs, he proposed that in those areas in which the EU Council acts as legislator, each member state should be authorised to be represented not by a minister but by a national parliamentarian. So at that time he was implicitly taking a position that runs counter to the one the EPP is adopting today because instead of suggesting that in the future the Council should retain its legislative powers, he saw its role as being confined to the executive field, a view which would appear to be fully justified.
47. In this connection the Laeken Declaration asks whether the different instruments of the European Union should not be better defined and whether a distinction should be introduced between legislative and executive measures. But it does not call into question the twofold role of the Council as an executive and legislative power. However, it is interesting to note that Mr Solana, in his report on reform of the Council dated 7 March 2002, raises the question of whether the time has now come "to adopt certain rules and practices in force in parliamentary bodies".
48. The European Union is indeed a unique case in which the governments of the member states collectively have the competence to act as both the executive power and the legislator. But it has to be said that this dual role is not compatible with what is one of the fundamental principles inherent in all democratic systems, namely, the separation of powers. Ms Danuta Hübner, a Polish member of the Convention, even goes so far as to refer to a "violation of Montesquieu's principle" in her contribution to the Convention dated 3 April 2002. (In the case of the German Bundesrat that principle is applied at least at the federal level because the governments of the Länder meeting in the Bundesrat at that level have a legislative role but no executive powers.)
49. If one were to choose the option of transforming the Council into a second chamber endowed solely with legislative powers that it would share with the European Parliament, this would be tantamount to transposing the Bundesrat system to the EU level and the question raised earlier on in this report as to who should represent the member states as the legislator at European level alongside the European Parliament would be answered: it would be the governments.
50. In that scenario the national parliaments would therefore have no collective role in European legislation. Their job would be confined to each parliament ensuring that legislation passed at European level was transposed into national law.
51. Although the Council's legislative function is based on the treaties currently in force and although it is perfectly legitimate to transpose the Bundesrat model to the European level, one has to ask whether this would in fact be the right choice for the future. This is a fundamental problem on which the Convention should take a position once it has examined it thoroughly.
52. Michel Barnier, European Commissioner and member of the Convention, expressed the view in a personal note dated 17 October 2001 that:

53. However, this proposal would not appear to be a solution since it stops short of solving the basic problem. The discussion paper of 4 May 2001 circulated by the Swedish Parliament as its contribution to preparations for the XXIVth meeting of COSAC in Stockholm, makes the very apposite objection that, on the contrary, such a solution such would create confusion between the roles of governments and parliaments, this being something that is to be avoided at all costs.
54. The Convention's examination of this issue should therefore hinge on the general question of whether there is a desire for the European Union to have a more substantial parliamentary component or be run along governmental lines. There are sound arguments for giving legislative powers to elected national representatives rather than to government representatives given that in most democracies it is elected members of parliament, not governments, who have the final say on legislation.
55. Following that rationale, the elected representatives of the member states would replace the Council as the legislative body and form a second chamber in the European Union, while the role of the Council would be limited to decision-making and executive functions. The national parliaments would retain their powers to examine draft legislative texts produced by the European Union and would themselves supervise the way their representatives voted in the second interparliamentary chamber.
56. If this were to happen, all the arguments that have put forward so far against any representation of national parliamentarians on the grounds that this would in practice mean creating a "third chamber" would no longer have any basis. The argument that has also been put forward claiming that a chamber composed of national parliamentarians with responsibility for passing legislation alongside the European Parliament would make decision-making more difficult and lead to an impasse with the EP, is not valid since provisions for reconciliation already exist in the event of a conflict between the Parliament and the Council as legislator and would merely have to be adapted.
57. There is also a school of thought according to which national parliamentarians would be materially unable to take on a legislative mandate at European level because they are already overburdened by their obligations in the national parliaments and in their constituencies. It is above all up to national parliamentarians themselves, and in particular their representatives in the Convention, to assess the validity of this argument. In any event, one key question they must consider is the method of selecting elected national representatives to carry out legislative tasks for which the governments have hitherto taken responsibility.
58. What would be the best arrangement: representatives chosen from national (and regional) parliaments or European "senators" elected for the specific purpose of representing their country and carrying out the tasks in question? On this matter the Convention could look inter alia at the report, dated 13 June 2001, submitted by the French Senator Daniel Hoeffel and entitled "A second European chamber", which states the following:

59. If the conclusion were reached that the role of co-legislator should be given to this sort of "second chamber" made up of elected national representatives, it would also have competence to monitor compliance with the European Union's principle of subsidiarity. This it would do as a complement to and in conjunction with the European Parliament. It is quite clear that all EU bodies are obliged to comply with the principle of subsidiarity and that the European Court of Justice should be the legal guardian of that principle. However, it is essential for parliamentary bodies to ensure that it is complied with as early as the stage of the political preparation and drafting of legislative texts¹⁰.
60. The Convention should therefore be asked to decide whether it would not be better to delimit competence between the EU bodies along the following lines:

61. As far as general political oversight of the executive power-holding body in the Community areas is concerned, it would seem logical for it too to be exercised by these two EU chambers. In the Community sphere the body of elected national representatives (the "second chamber") could in this way fully take on the role that currently belongs to COSAC.

2. National parliaments and policy areas hitherto subject to the intergovernmental method

62. As things stand, the intergovernmental method applies to areas falling within Title V of the Treaty on European Union (TEU), which concerns the Common Foreign and Security Policy (CFSP) and the European Security and Defence Policy (ESDP) (the second pillar). It also applies to areas covered by Title VI relating to police and judicial cooperation in criminal matters (the third pillar).
63. The Convention will certainly be examining whether, and if so to what extent, the abovementioned areas - or certain parts of them - could in future be governed by the Community method, as is proposed by the European Parliament and the European Commission in particular and by political parties in some of the member states.
64. On this point it should be borne in mind, as was stressed in the section of this report concerning the delimitation of decision-making and executive competence in a Community system, that even in such a system powers would continue to be shared between the Community bodies and the member states. This would also apply to the parliamentary dimension of a communitised CFSP and ESDP once they became EU areas of shared competence.
65. The question of whether national parliaments should play a collective role in the CFSP and ESDP therefore remains open irrespective of whether a decision is taken to transfer those policies to the Community pillar or to keep them in an intergovernmental system.
66. To understand the situation regarding the parliamentary dimension of the CFSP and ESDP, it has to be remembered that what this entails in practice is oversight of the Petersberg missions which the EU has inherited from WEU. These include humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking, as stated in Article 17.2 of the TEU in the version adopted at the Nice Summit¹¹.
67. From now on the EU must be able, under its own authority, to conduct the full range of these missions. What is the situation regarding the parliamentary dimension? The governments did not include it in the Nice agenda. For as long as the WEU Council had a mandate for the Petersberg missions, the parliamentary dimension was the responsibility of the Assembly of WEU, and the WEU Council was obliged, pursuant to an international treaty (the modified Brussels Treaty which is still in force) to transmit to the Assembly an annual written report on its activities in the relevant areas.
68. Since WEU has transferred responsibility for the exercise of these activities to the European Union, the question that now arises is who should henceforth take on the task of an interparliamentary body that can engage in debate and monitor cooperation among the Fifteen in the field of military crisis management in the same way that the WEU Assembly does?
69. The WEU Assembly has no remit from the European Union to supervise the Union's activities under the ESDP; the European Parliament's role is limited by Article 21 of the TEU, the text of which was not amended by the Nice European Council. That is why a parliamentary deficit has arisen under the ESDP which the Netherlands Foreign Minister, Jozias van Aartsen, went so far as to describe as a "parliamentary vacuum".
70. The initiatives the Netherlands Parliament and the Belgian Senate took in 2001 with a view to trying to secure agreement on the parliamentary dimension of the ESDP by holding a series of conferences attended by representatives of the European Parliament, the WEU Assembly and the national parliaments of the member states did not even produce a proposal for an interim solution to remedy the parliamentary deficit. Similarly, the WEU Assembly's proposal that it take on the function over the transitional period of an interparliamentary forum responsible for parliamentary oversight of the ESDP, working in synergy with the European Parliament, until a solution was found to the problem of the parliamentary dimension of the ESDP, was not given a favourable follow-up by the Laeken European Council and did not generate any interest in the European Parliament.
71. It is now up to the Convention to agree on a solution that will give the European Union the democratic legitimacy it is lacking, particularly in areas as sensitive as the ESDP.
72. It is not for us, in this document, to express a view on the chances of success of the proposals submitted by the European Parliament's Committee on Constitutional Affairs¹² with a view to foreign policy being brought under the EU's exclusive competence. Moreover, the same Committee proposes that the ESDP should come within the category of shared competence in the EU. Whatever action is taken on those proposals, the consequences for the parliamentary dimension of the ESDP will have to be studied. (Reminder: the Convention Praesidium considers that the CFSP already falls within the EU's category of shared competence).
73. If a decision is taken to bring the European Security and Defence Policy as a whole within the category of shared competence, it has to be remembered that as far as decision-making and executive power is concerned, there will still be two bodies: one representing the general interests of the EU as a whole - currently the Commission, and the other representing the interests of the member states - currently the Council. Depending on how political will evolves, it remains to be seen whether the European Commission could be transformed into a European "government" or whether the Council's ability to take key decisions will be preserved or strengthened. Whatever the case, the member states will continue to be represented in the EU's decision-making and executive institutions through a Council representing "intergovernmental competence". This power should be counterbalanced by "interparliamentary competence".
74. As a result of "duplication" of the executive, the democratic legitimacy of any action it takes will of necessity have to be based on a bicameral system. In such an arrangement the European Parliament, whose members are elected by direct universal suffrage, will (as it already does) represent the interests of all the citizens of the European Union. Its powers of scrutiny over the CFSP and ESDP will have to be strengthened as a counterbalance to the decision-making and executive powers of the Community bodies in the EU. That applies in particular to budgetary matters. The European Parliament's increased right of oversight of the CFSP and ESDP will also have to be set out in the Treaty on European Union.
75. But merely strengthening the European Parliament's rights will not suffice. At the same time the appropriate machinery will have to be set up to ensure that the member states' parliamentary interests are duly represented in the EU institutional system. Why?
76. The first point is that while provision must be made for a collective role for national parliaments in the CFSP and ESDP, the objective is not to give them the power to exercise "control" over the European executive in the proper sense of the term. Each member parliament has a mandate to exercise democratic scrutiny over its government in accordance with a country's constitutional rules.
77. At European level the collective role of a body representing the national parliaments should be to provide a channel for the flow of information and for consultation, and indeed dialogue, with the EU decision-making and executive bodies before and after decisions are taken.
78. This is necessary for a number of reasons. First of all every member parliament has difficulty in effectively scrutinising the action its government takes in European affairs, and indeed in the CFSP and ESDP. The national parliaments are unable to obtain an overview of policy conducted at European level because they depend on information which the governments provide on a bilateral basis. A national parliament does not receive information first-hand on the preparation of EU decisions and has no knowledge of the points of views of the other governments and parliaments concerned. Conversely, each government meets regularly with the other governments at meetings of the EU Council in its various forms.
79. Each national parliament is required to give its views on the budget contributions of its country to any EU-led military operations and on the deployment of troops for such operations, without having direct access to information about the decision-making process at European level.
80. Such access exists in WEU where the Council is under a treaty-based obligation to provide, on behalf of the governments it represents, information to an assembly which is an interparliamentary consultative body composed of representatives of all the national parliaments of the Organisation's member countries; but in the EU framework there is no similar collective parliamentary dimension for the CFSP and ESDP.
81. If no similar body is set up in the European Union, the national parliaments will be deprived of an essential source of information and possibilities for taking collective action, which would be a serious setback in terms of the democratic acquis that has been built up since efforts began to promote European integration in the fields of security and defence¹³.
82. In the same way as the governments must defend the legitimate interests of their countries in the EU's decision-making process in the Council, the national parliaments of the member states should have the possibility of expressing their concerns and the interests of their electorates in a European interparliamentary body.
83. The fact that the role of national parliaments in the process of European integration is part of the Convention's programme of work and will also be on the agenda of the next Intergovernmental Conference is a sign that the basic problem has been acknowledged and that what now has to be done is to reach agreement on the best way of remedying the democratic deficit.
84. Two main options are being defended in this context. The first consists in setting up an interparliamentary assembly based on the experience of existing interparliamentary assemblies. The second advocates copying the model of a parliamentary conference or "congress", possibly on the basis of the experience of the Conference of Community and European affairs committees of parliaments of the European Union (COSAC). Then there are those who are proposing a conference of chairmen of the relevant committees of the national parliaments.
85. If the national parliaments are to be able to achieve their objective of collective participation in the dialogue with the European executive, it would be preferable to take the model of an interparliamentary assembly created on the basis of the experience acquired by existing interparliamentary assemblies. Permanent intergovernmental cooperation should be counterbalanced by permanent interparliamentary cooperation.
86. A mere parliamentary "conference" would probably be too weak to exert any real influence in the European Union, as COSAC's experience has shown. Its particular disadvantage is that it has no interlocutor at European level since neither the Council nor the Commission has any obligations whatsoever towards it and they are not bound to reply to any contributions it makes.
87. A conference consisting solely of parliamentary committee chairmen would hardly be representative. In most EU member states it is the parties in government which appoint the chairmen of parliamentary committees. The debates of such a conference would not be very instructive, not only for parliamentarians belonging to opposition parties but also for all those who value their independent judgment.
88. In an opinion dated 6 December 2001, submitted to the European Parliament's Committee on Constitutional Affairs by the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy, the latter proposes that a parliamentary conference on the ESDP be convened jointly by the parliament of the member state holding the Presidency and by the European Parliament. Chairmen of the committees responsible for foreign affairs, for defence and for European Union affairs of the national parliaments of the member states, of the applicant states and of the European Parliament would take part in this conference together with other members of those committees whose number would be equal to the number of representatives of the European Parliament; the aim of the conference would be to review, in conjunction with the Council Presidency, the High Representative for the CFSP and the Commissioner responsible for external relations, the development of the ESDP with a view to ensuring appropriate parliamentary monitoring of that policy.
89. In a nutshell, what is being proposed here is the creation of a mixed interparliamentary conference of members of the European Parliament and the national parliaments. Such a model already exists in the form of COSAC. In assessing its usefulness it has to be realised that the interests and roles of the European Parliament and the national parliaments are bound to be different albeit complementary. Nevertheless, a mixed forum such as is being proposed by the European Parliament would be wholly under its direction as regards not only the presidency and secretariat but also its working methods, because only the European Parliament has the permanent structures necessary for organising a conference of this sort.
90. However, if the national parliaments want to see their legitimate interests represented collectively in the European Union, they will have to have a forum at that level that is separate from the European Parliament and has the resources and structures of its own that will enable it to work in the appropriate manner.
91. Furthermore, it has to be stressed that irrespective of the importance of coordination between the national parliaments and the European Parliament, the main object of parliamentary activity is dialogue with the executive power. In order to ensure that such a dialogue takes place, the European Parliament has established a number of procedures with the Council and Commission which could certainly be improved. However, the national parliaments must have their own possibilities for dialogue with the European executive, without having to depend on any arrangements the European Parliament might envisage in this respect.
92. In order to find an appropriate solution to the problem of how to give the national parliaments a collective role in the European Union, particularly as regards the CFSP and ESDP, the Convention should carry out a detailed study of the experience acquired by interparliamentary assemblies and especially those of WEU, NATO, the Council of Europe and the OSCE. It should also consider what has happened in COSAC, in conferences of the chairmen of parliamentary foreign affairs and defence committees and in conferences the European Parliament has held regularly, on a bilateral or multilateral basis, with representatives of the national parliaments.
93. While it is necessary to draw on what has been achieved in the abovementioned bodies and identify any shortcomings they may have, all the options remain open provided agreement can be reached on the need to give national parliaments some form of interparliamentary representation in the European Union so that they can defend their interests in an effective dialogue with the European executive independently of the European Parliament.
94. To ensure that a body of elected national representatives could work properly, the following questions will need to be addressed:

95. The question raised earlier on as to whether the issue of the role of national parliaments in the ESDP is part of the more general problem of the delimitation of competence in the European Union or whether it is a separate problem requiring a separate solution could be answered as follows: as regards the EU's legislative work, this report proposes that a body of elected national representatives constituting a "second chamber" should eventually take over the Council's role as co-legislator (alongside the European Parliament).
96. This chamber would also have competence to ensure compliance with the principle of subsidiarity in the European Union. As far as the parliamentary dimension of the CFSP/ESDP is concerned, this report proposes the establishment of a body of elected national representatives in the EU for the purpose of conducting a political dialogue with the European executive independently of the European Parliament, and suggests that it should even be an interparliamentary body that would act as a counterbalance to the intergovernmental power of the Council.
97. There are sound arguments for this type of "second chamber" also being assigned consultative functions under the CFSP and ESDP to. It could also be given responsibility for supervising EU activities in areas covered by Title VI of the TEU relating to police and judicial cooperation in criminal matters.
98. A "global" solution of this sort would create a real bicameral system in the European Union without making the legislative and decision-making process more cumbersome. Furthermore, the Council would be relieved of its legislative functions and could then concentrate fully on its decision-making and executive functions. In any event the Council's legislative function should not be seen as an indispensable Community acquis.
99. There is no doubt that the composition and working methods of the second interparliamentary chamber will need to be carefully thought through so that it can work effectively and be spared an excessive workload. At present there is a golden opportunity to do just that. The solution proposed in this report would avoid the need for specific and separate arrangements for parliamentary oversight of the CFSP and ESDP. On the other hand specific solutions would be required if it were decided that the Council's legislative role must be preserved at all costs.
100. As things stand, the model proposed in this report cannot replace the functions of the WEU Assembly until provision is made for a collective defence in the Treaty on European Union, until all the areas of armaments cooperation in the framework of WEAG and WEAO cease to be the responsibility of WEU, and therefore until the modified Brussels Treaty can be denounced. In the meantime the WEU Assembly will continue to be an essential forum in which all national parliamentarians, including those of countries whose prospects of joining the EU are still some way off, can air their views.
101. In this situation the Convention would therefore do well to examine whether and in what conditions it would be possible to incorporate all the areas of a common defence in the European Union. The Assembly will be addressing this subject in one of its further contributions to the Convention in the near future.

1. The WEU Assembly is the interparliamentary counterpart of the intergovernmental WEU Council. Their relationship is defined by the modified Brussels Treaty of 1954, which contains detailed provisions on the role of the Assembly. Article IX of the Treaty states that "the Council of Western European Union shall make an annual report on its activities [...] to an Assembly composed of representatives of the Brussels Treaty Powers". Thus the WEU Assembly consists of delegations of the relevant national parliaments. These delegations reflect not only the size of individual countries but also the spectrum of the political groupings represented in their parliaments. On the basis of this spectrum, Assembly members are affiliated to political groups. The WEU Assembly is one of only three treaty-based parliamentary institutions in Europe.
2. Statutorily, prior to the spring plenary session, the Council of WEU communicates an annual report to the Assembly on its activities during the preceding year. In response to a request by the Assembly, in 1986 the Council agreed to communicate half-yearly reports to the Assembly. Each such report is referred to the appropriate committees for study and the committees submit their views to the Assembly in an appropriate report. The Assembly has six permanent committees. Their meetings are not public but they may invite guest speakers to address them. The main political work is done by the Defence Committee, the Political Committee and the Technological and Aerospace Committee. Apart from preparing reports on matters referred to them by the Assembly, the committees regularly organise public colloquies on topical security and defence questions and armaments cooperation including especially technological and aerospace aspects.
3. At biannual plenary sessions, held normally in Paris in June and December, the annual report is presented orally by the Chairman-in-Office of the Council, who generally continues with a statement on his government's policy concerning security and defence issues. He then answers oral questions from Members, both in his capacity as Chairman-in-Office and as Minister for Foreign Affairs of his country.
4. After debating the reports submitted by the committees in reply to the annual report of the Council, the Assembly votes on the draft recommendations. The Council is obliged to reply to recommendations adopted by the Assembly. With the exception of the Council of Europe, no similar obligation exists in any other organisation. It may adopt a motion to disagree to the annual report by an absolute majority of representatives to the Assembly.
5. In plenary session the Assembly also considers reports from its committees on questions referred to them.
6. Representatives may normally put oral questions to Ministers or other speakers who address the Assembly. They may put written questions to the Council at any time and a written reply will be given within a specified time limit.
7. Article IX of the modified Brussels Treaty has thus allowed considerable development. However, the fact that the dialogue between the Council and the Assembly is held in public imposes certain limitations.
8. First, the annual report does not allow the Council to give the Assembly a full picture of its activities because the report is a public document and the Council's deliberations are confidential.
9. Second, the Council's replies to recommendations and written questions are sometimes of a very general nature owing to the difficulty of arriving at a joint position in the Council.
10. In view of the shortcomings of public procedures for exchanging views, the Council has sought additional procedures in proposing the practice of holding informal, confidential meetings between the relevant Council and Assembly bodies.
11. Since October 1984, there have been confidential contacts between the Assembly and the Council as follows:

12. The committees also obtain information on the policy of a given country in the fields of foreign policy, defence or technology direct from ministers and other officials who are invited to address the committees in camera and to answer questions, especially during regular study-visits by the committees concerned.
13. Ministers and the Secretary-General are expected to appear before the Assembly for plenary sessions on invitation and by arrangement on other occasions.
14. Over the years the Assembly's constitutional relationship with the Council and with member countries has proved particularly fertile with parliamentary action always at the cutting edge of debate on current issues affecting European security (e.g. over the "Euromissiles", nuclear deterrence, the "Hague Platform"(1987), European cooperation during the Iran-Iraq war (1987-88), during the crisis in the Gulf and Red Sea (1990-91), in the Adriatic (1992-96) and on the Danube (1993-96), as well as on policing in Bosnia (Mostar 1994-96), Albania (since 1997) and Kosovo (since 1998), and on the demining operation in Croatia (since 1999). The Assembly's Recommendations to Ministers on the setting up of a centre for the analysis of satellite imagery (Recommendations 465 and 466, 8.12.1988), an Institute for Security Studies (Recommendation 467, 16.3.1989), a European Rapid Action Force (Recommendation 515, 5.12.1991), a Planning Cell (Recommendation 518, 2.6.1992), a European Armaments Agency (Recommendation 557, 13.6.1994), a European military staff (Recommendation 623, 3.12.1997) etc., have produced largely positive responses - as acknowledged in the mandatory replies received over the years from the Council.
15. The vast majority of the Assembly's ideas are now coming to fruition in the new arrangements for security and defence currently being implemented by the European Union via the European Security and Defence Policy (ESDP).
16. Under the Maastricht Treaty, WEU as a whole (thus including its Assembly) became "an integral part of the development of the European Union" (Article J.4). This was confirmed by Article 17 of the Amsterdam Treaty. At the Nice Summit, however, it was decided to transfer WEU's responsibilities for "Petersberg" missions to the EU. It was accordingly agreed that any reference to WEU should be deleted from the revised version of Article 17 with the exception of the clause stating that the provisions of that article were not to prevent the development of closer cooperation between member states in the framework of WEU.
17. Even with all the various institutional changes that have taken place in Europe, the WEU Assembly is still the only European parliamentary assembly with a clear mandate to monitor security and defence issues. Since its foundation on 5 July 1955 it has provided an important interparliamentary forum for debate where Europe's political leaders regularly engage in discussions with national parliamentarians, not only from the 28 WEU countries, but also from further afield.

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DRAFT RESOLUTION

(i) Fervently hoping that the Convention on the future of the European Union will succeed in adopting appropriate proposals for making progress on resolving issues raised by the future development of the European Union including in particular:

(ii) Desirous that in the course of its deliberations the Convention address the democratic principle of the separation of powers in the European Union;

(iii) Advocating, in application of that principle, that the member governments meeting in the Council should progressively concentrate on their decision-making role and the Commission on its executive role;

(iv) Desirous that legislative tasks at European level and functions of general supervision of EU policy as determined by the European Union's executive power should in the future be assigned to parliamentary bodies forming a bicameral system;

(v) Desirous also that the Council's intergovernmental competence should be counterbalanced at European level by interparliamentary competence exercised by a body of elected national representatives;

(vi) Recalling that EU integration will not be complete until the Union decides to make a common defence a part of it,

1. Include in its debates a discussion of the following proposals:

2. Include on its agenda an examination of the options for including a common defence in the Treaty on European Union and the implications thereof.

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AMENDMENTS

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AMENDMENTS 1 -7¹⁴

tabled by Mr Eyskens, Rapporteur

1. At the end of recital (iii) of the preamble to the draft resolution, replace the words "and the Commission on its executive role" by "and the Commission on its role of providing impetus and executing decisions".

2. In the first line of recital (iv) of the preamble to the draft resolution, replace the words "legislative tasks" by "the power to legislate".

3. In paragraph 1(a) of the draft resolution proper, replace the words "and the Commision on its executive role" by "and the Commission on its role of providing impetus and executing decisions".

4. In paragraph 1(b) of the draft resolution proper, replace the words "legislative tasks should accordingly be performed" by "the power to legislate should accordingly be exercised".

5. At the end of the first indent of paragraph 1(b) of the draft resolution proper, add the following text:

6. At the end of the first indent of paragraph 1(c) of the draft resolution proper, add the following text:

7. In paragraph 1(e) of the draft resolution proper, insert the following words at the end of the paragraph: "and defining their members' mandate".

Signed: Eyskens

AMENDMENT 8¹⁵

tabled by Mr Rino Piscitello

8. In paragraph 1(c) of the draft resolution proper, delete the words from "not vote on regulatory texts" to "exercise of its intergovernmental competence;"

Signed: Piscitello

AMENDMENT 9-17¹⁶

tabled by Mr Rivolta

9. In recital (ii) of the preamble to the draft resolution, replace the word "democratic" by the word "liberal".

10. In recital (iv) of the preamble to the draft resolution, after "parliamentary bodies" delete the words "forming a bicameral system".

11. In recital (v) of the preamble to the draft resolution, replace the words "interparliamentary competence exercised by a body of elected national representatives" by "parliamentary competence exercised by elected national representatives".

12. In paragraph 1(b) of the draft resolution proper, replace the words "two parliamentary bodies working separately and in a complementary manner" by "the parliamentary body".

13. In paragraph 1(b) of the draft resolution proper, delete from the words "the European Parliament would become" to "drive to complete European integration".

14. In paragraph 1(c) of the draft resolution proper, replace the word "interparliamentary" by the word "parliamentary".

15. In paragraph 1(d) of the draft resolution proper, replace the words "could be accompanied by the interparliamentary chamber taking on COSAC's tasks" by "could be accompanied by the taking on of COSAC's tasks".

16. In paragraph 1(e) of the draft resolution proper, replace the word "interparliamentary" by "parliamentary".

17. In paragraph 1(c) of the draft resolution proper, after the word "should" add the word "also".

Signed: Rivolta

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¹ Adopted by the Assembly on 4 June 2002 (2^nd sitting) on the basis of the amended draft resolution.

² For full text consult the EPP website at http://epp-ed.europarl.eu.int/press/pdoc01/lakenfinal12-01_en.doc

³ In EU parlance "communitisation" means transferring a matter which, in the institutional framework of the Union, is dealt with using the intergovernmental method (second and third pillars) to the Community method (first pillar); source: http://europa.eu.int/scadplus/leg/en/cig/g4000.htm

⁴ See for example the Mr Blair and Mr Schröder's joint letter of 27 February 2002 on the reform of the European Council and Mr Solana's report of 7 March 2002 entitled "Preparing the Council for enlargement".

⁵ See for example the draft report dated 6 February 2002, submitted by Mr Alain Lamassoure (member of the Convention) on "The division of powers between the European Union and the Member States" (2001/2024 (INI) provisional); see http://www.europarl.eu.int/meetdocs/committees/afco/20020326/443686en.pdf on the European Parliament's website.

⁶ In this connection it is interesting to take a look at the powers the Treaty establishing the European Defence Community (EDC) conferred upon the member state governments in comparison to the supranational power of the Board of Commissioners, the EDC's executive body. Explanations of the treaty provisions regarding the "Council" specified among other things that:

In the EDC the Council, alongside the supranational power, therefore had a relatively strong position with the possibility of taking decisions that were obligatory in the case of the main executive body, the Board of Commissioners.

⁷ See for instance the discussion paper entitled "National parliaments and the European Union" submitted to COSAC by the Swedish Parliament, 4 May 2001, page 23.

⁸ For full text consult the EPP website at http://epp-ed.europarl.eu.int/press/pdoc01/lakenfinal12-01_en.doc

⁹ Le Figaro, 29 November 1994.

¹⁰ At present this task is the responsibility of COREPER on the basis of Article 19 of the internal rules of procedure of the EU Council.

¹¹ The Treaty on European Union thus incorporates word for word the text of the Declaration adopted by the WEU Council of Ministers in Petersberg, near Bonn, on 19 June 1992.

¹² Draft report dated 6 February 2002, submitted by Mr Alain Lamassoure on "The division of powers between the European Union and the Member States" (2001/2024 (INI) provisional); see http://www.europarl.eu.int/meetdocs/committees/afco/20020326/443686en.pdf on the European Parliament's website.

¹³ See Appendix for a list of the acquis of the WEU Assembly.

¹⁴ See 2^nd sitting, 3 June 2002 (amendments 1-7 adopted).

¹⁵ See 2^nd sitting, 3 June 2002 (amendment rejected).

¹⁶ See 2^nd sitting, 3 June 2002 (amendments 9-16 rejected, amendment 17 adopted).