Opinion of the Committee of the Regions on "A better division and definition of powers in the European Union"

(2003/C 73/16)

THE COMMITTEE OF THE REGIONS,

having regard to the decision of its Bureau of 14 May 2002, under the fifth paragraph of Article 265 of the Treaty establishing the European Community, to instruct the Commission for Constitutional Affairs and European Governance to draw up an opinion on this subject;

having regard to the presidency conclusions of the Laeken European Council of 14 and 15 December 2001, and in particular the Laeken Declaration on the future of the European Union;

having regard to the Charter of Fundamental Rights of the European Union, and in particular its preamble;

having regard to the contributions of the European Convention, particularly documents CONV 47/02, CONV 50/02 and CONV 162/02 on the division of powers and legal instruments;

having regard to its contribution to the European Convention (CdR 127/2002 fin) adopted on 4 July 2002;

having regard to its opinion of 13 March 2002 on the draft report of the European Parliament on the division of powers between the European Union and the Member States (CdR 466/2001 fin)(1);

having regard to the draft opinion (CdR 119/2002 rev. 2) adopted by the Commission for Constitutional Affairs and European Governance on 4 October 2002 (Rapporteur: Mr Olivas Martínez (E-EPP), President of the regional government of Valencia;

whereas there is an urgent need for public understanding of who does what in Europe and a legitimate demand for transparency and simpler procedures;

whereas the Community must recognise rights already acquired at national level by local and regional governments;

whereas the EU must provide for flexibility in the legislative phase in order to ensure that the diversity of the Member States and their regional and local authorities is respected;

whereas the CoR must be given an active role in monitoring respect for the subsidiarity principle,

adopted the following opinion by a majority at its 47th plenary session held on 20 and 21 November 2002 (meeting of 21 November).

1. The Committee of the Regions' views

The Committee of the Regions

1.1. believes that the Union's current objectives, as reflected in the Treaty, must not only be maintained, but should be supplemented and strengthened. In this regard, it must be explicitly stated that safeguarding the principles of freedom, democracy and solidarity, respect for human rights and fundamental freedoms and the rule of law, together with respect for cultural, linguistic and territorial diversity, and promoting these values in the rest of the world is an objective of the Union.

1.2. considers that the objective of improving economic and social cohesion should be reinforced by making it a fundamental aim of the Treaty, and that territorial cohesion should be a further such aim. If we do not make a concerted effort to address the increased diversity that enlargement will bring, political and economic integration, the Union's prime aim, will be threatened.

1.3. believes that responsibility for achieving these objectives should be shared between the Union institutions and national, regional and local authorities; to this end, the principle of cooperation, which is implicit in Article 10 of the EC Treaty(2), should be explicitly stated in the new treaty.

1.4. believes there is a need to seek ways of increasing consistency between the Union's different policies on the basis of its fundamental horizontal objectives, including, inter alia, economic and social cohesion, environmental conservation and equal opportunities, with due respect for the subsidiarity principle. The obligation for all Union policies to serve these horizontal objectives must be enshrined in the Treaties to enable the Court of Justice of the European Communities to monitor compliance.

1.5. believes that the division of competence within the European Union must be based on the fundamental principle that any competence not assigned to the Union remains the responsibility of the Member States. This principle is already incorporated in the Treaties, although only the EC Treaty refers to it explicitly.

1.6. reiterates its view that the principles of subsidiarity and proportionality, as enshrined in the Treaties, must be supplemented by provisions to guarantee constitutional respect for the competence of the regions and local authorities. In the interests of transparency and correct implementation of the subsidiarity principle, the procedure for adopting decisions on the basis of these clauses should also be modified.

1.7. notes that the lack of a hierarchy and clear structure as to the type of laws to be used and non-compliance with the principles of subsidiarity and proportionality(3), which seek to bring decision-making closer to the citizens via the Member States and local and regional entities, are among the main problems impeding an appropriate division of responsibilities.

1.8. considers that the principle of the allocation of competences should be consolidated, and that there is thus a need for a clear system for the allocation of competences in a way which can be easily understood by both the public and political players at grassroots level. It would also seem desirable to further clarify the allocation of legislative, executive and supervisory powers within the EU. The application of principles such as separation, balance and cooperation between powers must be defined in the new constitutional framework.

1.9. stresses its belief that the Union should be given all the powers necessary to achieve its objectives and the most appropriate instruments to carry out its tasks (CdR 127/2002 fin, point 3.2), and suggests that the division into three pillars on the basis of subject area be abandoned in favour of a unified approach, but that a case-by-case policy be retained for legislative procedures and institutional competences. Indeed, the scope of the instruments at the Union's disposal must vary according to the intended aim and the type of competence - exclusive, shared, supplementary or coordinating powers - concerned.

1.10. reiterates its desire for the political objectives set out in Article 2 of the EU Treaty to be strengthened as follows:

- the establishment of a genuine common foreign and security policy, inter alia by granting the Union exclusive competences in this field, in order to give it a greater role on the international stage; in this regard the integration of trade, development and humanitarian aid policy is essential;

- the creation of an area of freedom, security and justice for European citizens, on the basis of the Charter of Fundamental Rights, which is the basic instrument underpinning rights. Community immigration and asylum policy must become a genuinely integrated policy taking into account respect for human rights, preservation of the Union's social cohesion, the need to combat illegal immigration, and concern for the development of immigrants' countries of origin;

- the consolidation of the European social and economic model, in which social and territorial cohesion, a high level of social security and a better quality of life, far from being incompatible with economic progress, are a prerequisite for each region's competitiveness;

- a sustainable development policy, with better coordination of environmental, social and economic policies (CdR 127/2002 fin).

1.11. judges that on one hand a transfer of new competences and a handing back of powers in the context of a better division of powers must be envisaged, as stated in previous opinions(4). However, it certainly seems to be the case that the citizens want the Union to have more instruments with which to achieve some of its objectives, in particular achieving an area of freedom, security and justice and reaffirming the identity of the Union in the international arena.

1.12. considers that any division of competence must respect the subsidiarity principle.

1.13. notes that the competences assigned to the Union are mainly legislative in nature, and are based on the objectives to be achieved. However, except where there is a justified exception, national, regional and local authorities are largely responsible for implementing and applying legislation. Indeed, even in the specific cases where the Treaties do grant exclusive competence in certain areas, final implementation is normally the responsibility of national, regional or local authorities.

1.14. considers that respect for the principle of subsidiarity also judges the strength of the legal instrument chosen and that a priori the most appropriate legal instruments, therefore, are framework laws and directives. In this context, it is desirable to reduce the number of procedures and adopt terminology corresponding to everyday words used in the Member States which are most familiar to the citizen, that is to say, law and framework law. More detailed regulations should be used only where these are necessary to achieve the objective. Once legislation has been drawn up, the subsidiarity principle should be borne in mind when determining the level of government competent to implement it. Moreover, where basic law assigns competence for implementation to the European institutions, the explanatory statement must clearly mention the obligation to respect the subsidiarity principle.

1.15. considers, however, that in practice neither Article 5 nor the protocol annexed to the Treaty of Amsterdam have been implemented in an entirely satisfactory manner, for reasons ranging from incorrect political interpretation on the part of the Commission, which has, on occasion, interpreted the concept of exclusive competence somewhat broadly, to the vague wording of Article 5 itself. Without question, it has been the regional and local authorities which have suffered most from the failure to apply the subsidiarity principle fully.

1.16. notes that the problem of monitoring implementation of the subsidiarity and proportionality principles and the division of competences has provoked a debate on the merits of either a preventive political control procedure or ex-post judicial control by the European Court of Justice. The CoR favours the judicial option, as it would enable it to play an active role in the appeal procedure. Political control of European legislation must go in the first place to the European institutions, but the CoR also recognises the role played by national parliaments and competent regional parliaments in the control of the action of their governments at the European Council.

1.17. considers, however, that creation of an ex-post judicial appeal procedure would require a new referral procedure with suspensive effect, to be initiated prior to entry into force of a legislative act. The European Commission, a significant minority of the Council, the European Parliament and the Committee of the Regions would all be able to initiate the procedure. The judicial ruling would have to be delivered within 30 days and would constitute the final decision on whether or not the subsidiarity principle, the principle of proportionality and the allocation of powers had been applied correctly.

1.18. considers that clauses such as Articles 95 and 308 of the EC Treaty will have to be made more specific in terms of the subsidiarity principle if the European Union is to continue reacting in a flexible manner to new challenges. This will help safeguard the momentum of the integration process and provide for the possibility of future changes in the allocation of competences between the Union and national authorities.

2. The Committee of the Regions' recommendations

The Committee of the Regions

Transparency and clarification of competence

2.1. believes that the principle of cooperation between all levels of government must be a fundamental principle of the Union's operation in the future as an expression of the shared responsibility for attaining the objectives of European integration.

2.2. believes that Article 5 of the EC Treaty should make an explicit reference to the subnational (regional and local) entities.

2.3. considers that the co-decision procedure must apply in all cases, in order to ensure that the European Parliament is involved, and that in all cases of obligatory consultation of the Committee of the Regions as foreseen in the Treaty, it is desirable that the CoR is involved downstream in the procedures.

2.4. further believes that its action should be reinforced by a binding instrument with greater force than a normal opinion, such as a right of suspensive veto or the power to propose legislative initiatives limited to relevant areas that fall within the competence of regional and local authorities and on which consultation of the CoR is obligatory, particularly the multiannual reforms of European Union policies such as the structural funds or transport policy.

2.5. proposes, regarding the classification of competences, that a clear distinction be made between:

- exclusive competences of the Union, primarily the responsibility of the European Union institutions,

- shared competences, where responsibility is shared between the Union and the Member States (and, depending on the internal organisation, between national, regional and local authorities),

- secondary competences, where the Union's role is confined to supplementing or supporting action by the Member States, adopting supporting measures or coordinating the Member States' actions. On this front, there appears to be a need for greater clarity concerning the limits of Union action in order to ensure respect for the prerogatives of the Member States and of the subnational levels in the spheres of education, training, youth, civil protection, culture, sport, health, industry and tourism. When, in an area relevant to secondary competences, Member States deem it necessary to use "open coordination", this must be accompanied by proper parliamentary control and involve sub-national levels which have executive competences in this area.

2.6. believes that the current division of competences based on the objectives to be achieved should be maintained, and that the Union should be given all the instruments necessary to achieve them. It must, therefore, have at its disposal a different range of instruments from that based on an allocation of competences by subject. This method has been key to Community integration, and should continue to be so, provided that the principles of subsidiarity and proportionality are respected whenever it is used.

2.7. considers, nonetheless, that a clearer division of responsibilities cannot be synonymous with producing a catalogue or list of competences by policy area, since this would be an illusion of transparency which would be likely to mislead citizens, since reality is very difficult to compartmentalise, with regulation of one area always impacting on others and the fact that in practice the vast majority of powers are shared in one way or another (irrespective of whether they are defined as concurrent, complementary, etc.

Implementation and compliance: framework laws and a control system

2.8. considers that in accordance with the subsidiarity principle, framework legislation should be the preferred option, to allow Member States and, where appropriate, regional and local authorities, to tailor legislation to their own specific features.

2.9. considers that correct implementation of the subsidiarity principle is crucial for the protection of the principles of local and regional autonomy and, consequently, that the Treaty should recognise the fundamental role played by local and regional authorities in bringing European decisions closer to the public.

2.10. believes that any consideration of the division of tasks between the Union and the Member States must also encompass the question of the implementation of competences; considers, consequently, that if the European Commission is asked to adopt implementing rules in areas where sub-national decision-making levels have executive competences, representatives of local and regional administration should be involved in the comitology procedures.

2.11. proposes that the CoR be given a key role in monitoring application of this principle, since it is the European Union body responsible for the institutional representation of local and regional authorities.

2.12. supports the creation of an ad-hoc chamber within the European Court of Justice responsible for monitoring application of the subsidiarity and proportionality principles.

The principle of related actions and the flexibility clause

2.13. emphasises the importance of ensuring that the principle of related actions is applied, i.e. a commitment that any allocation of tasks to regional and local authorities must be accompanied by the financial resources needed to carry them out.

2.14. shares the view that there is a continued need for the flexibility clauses contained in Articles 95 and 308 of the EC Treaty, which must in any event have the favourable opinion of the European Parliament, and require consultation of the CoR where there would be a strong territorial impact.

2.15. instructs its President to forward this opinion to the European Convention, the Presidency of the Union, the Council, the European Parliament and the European Commission.

Brussels, 21 November 2002.

The President

of the Committee of the Regions

Albert Bore

(1) OJ C 192, 12.8.2002, p. 31.

(2) "Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty."

(3) Preasidium Note 47/02, 15 May 2002.

(4) See CoR opinion on the Draft Report of the European Parliament on the division of powers between the European Union and the Member States (CdR 466/2001 fin).