Opinion of the Committee of the Regions on the "Draft Report of the European Parliament on the division of powers between the European Union and the Member States"
Date: 2002-03-13
Institutions: European Committee of the Regions
Subjects: EU competence, EU publication, European Union, European integration, principle of subsidiarity

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requests that its role be reassessed within the new
6.16.
European architecture,
it be assigned responsibilities
extending beyond its consultative remit, especially during the
pre-legislative phase and in connection with the effective

that

monitoring of executive action, and that it be granted investiga-
tive powers as regards respect for the subsidiarity principle
and a ‘monitoring mandate’ as regards the impact of directives
and regulations on regional and local authorities.

Brussels, 13 March 2002.

The President

of the Committee of the Regions

Albert BORE

Opinion of the Committee of the Regions on the ‘Draft Report of the European Parliament on
the division of powers between the European Union and the Member States’

(2002/C 192/08)

THE COMMITTEE OF THE REGIONS,

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

having regard to the draft report of the European Parliament’s Committee on Constitutional Affairs on
the division of powers between the European Union and the Member States (PE 304.276);

having regard to the European Parliament’s resolution on the Commission reports to the European
Council on Better Lawmaking 1998 and Better Lawmaking 1999 (C5-0266/2000 and C5-0279/1999);

having regard to the opinion of 10 October 2001 of the European Parliament’s Committee on Regional
Policy, Transport and Tourism for the Committee on Constitutional Affairs on the division of powers
between the European Union and the Member States (PE 301.816);

having regard to the draft opinion of 23 August 2001 of the European Parliament’s Committee on
Foreign Affairs, Human Rights, Common Security and Defence Policy for the Committee on Constitutional
Affairs on the delimitation of powers between the European Union and the Member States (PE 302.070);

having regard to the Commission communication of 5 December 2001 on the future of the European
Union (COM(2001) 727 final);

having regard to its resolution of 14 November 2001 on the preparations for the Laeken European
Council and the further development of the European Union in the context of the next intergovernmental
conference in 2004 (CdR 104/2001 fin);

having regard to its report of 20 September 2001 on proximity (CdR 436/2000 fin);

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having regard to its resolution of 4 April 2001 on the outcome of the 2000 Intergovernmental
Conference and the discussion on the future of the European Union (CdR 430/2000 fin) (1);

having regard to its opinions of 15 September 1999 and 13 April 2000 on the Commission reports to
the European Council on Better Lawmaking 1998 and Better Lawmaking 1999 (CdR 50/1999 fin and
CdR 18/2000 fin) (2);

having regard to its opinion of 11 March 1999 on the principle of subsidiarity: Developing a genuine
culture of subsidiarity. An appeal by the Committee of the Regions (CdR 302/98 fin) (3);

having regard to the request for consultation by the European Parliament’s Committee on Constitutional
Affairs pursuant to Article 265(4) of the Treaty establishing the European Community;

having regard to the decision of its President, pursuant to Rule 40(2) of its Rules of Procedure, to use the
urgency procedure and to appoint two rapporteurs-general, Mr Chabert (B-EPP), vice-president and
Minister for Public Works, Transport and Health Policy in the Brussels-Capital Government and
Mr Dammeyer (D-PES), Member of the North Rhine-Westphalia Landtag;

whereas the Committee of the Regions has been given active observer status on the European Convention
established by the Laeken European Council; whereas it has been agreed that the issue of a more
satisfactory distribution and definition of powers within the European Union should be at the forefront
of moves to give a fresh impetus to the Union;

whereas in the Laeken Declaration the Heads of State or Government referred on several occasions to the
regional dimension as one area meriting further consideration with a view to a better distribution and
definition of powers in the European Union, raising the following questions:

— how can we ensure that a redefined division of competence does not lead to a creeping expansion
of the competence of the Union or to encroachment upon the exclusive areas of competence of the
Member States and, where there is provision for this, regions?

— should not the day-to-day administration and implementation of the Union’s policy be left more
emphatically to the Member States and, where their constitutions so provide, to the regions? Should
they not be provided with guarantees that their spheres of competence will not be affected?

whereas since its creation, the Committee of the Regions has pressed for a debate on the delimitation of
powers and effective implementation of the principles of subsidiarity, proportionality and proximity, and
has expressed its views on the matter on numerous occasions over the course of its first two four-year
terms of office,

adopted the following opinion unanimously at its 43rd plenary session of 13/14 March 2002 (meeting
of 13 March).

1. General comments on the division of powers in the

European Union

The Committee of the Regions

welcomes the fact that the deliberations of the Euro-
1.2.
pean Parliament’s Committee on Constitutional Affairs on this
question have led the latter to consider the position, role and
institutional representation of the regions and local authorities
in the European Union.

1.1.
welcomes the opportunity provided by the European
Parliament’s request for consultation to set out its position of
principle on this issue which, quite rightly, is to be the central
theme of the mandate of the Convention responsible for
preparing for the next intergovernmental conference.

(1) OJ C 253, 12.9.2001, p. 25.
(2) OJ C 374, 23.12.1999, p. 11, OJ C 226, 8.8.2000 p. 60.
(3) OJ C 198, 14.7.1999, p. 73.

highlights the fact that increasing integration has a
1.3.
considerable impact on the independence of regions and
municipalities, since the European Union has, over time,
interpreted and applied its powers ever more widely in many
fields. In the debate on a better allocation of competencies, it
is not only a matter of improving legal instruments, but also
of examining the political division of responsibilities between

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the Union and the Member States in key policy areas. Many of
these policy areas, however, affect the remit of regional and
local authorities, e.g. culture and education policy, research and
technology, environment policy and regional and agricultural
structural policy (1).

office, at this early stage of this comprehensive debate in order
to provide the European Parliament with relevant information
on the issues of principle involved, and will make its views
known as the Convention’s work progresses.

1.4.
recalls that one objective is a more democratic, trans-
parent and effective EU; that this is to be achieved through
clarification, simplification and adaptation of the Treaties, as
well as improved information to the citizen.

1.10. means to conduct an ongoing dialogue with the
European Parliament on this matter, for the duration of the
work of the Convention on the future of the Union.

1.5.
welcomes the Convention as the first step in the
direction of a more democratic method of Treaty revision,
and calls for the widest possible dissemination of the final
conclusions and recommendations of the Convention.

2. A better division and definition of powers within the
European Union is essential for continued European
integration

1.6.
considers, consequently, that any discussions on a
better division of powers must be based not only on the
principle of subsidiarity, but also on those of proportionality,
proximity and respect for national and regional identities, and
must seek to promote a political responsibility for proximity.

in nature, and that

1.7.
believes that the principle of subsidiarity is a political
its
principle which is constitutional
incorporation in the Treaties requires Member States and
the relevant institutions to choose the most effective and
proportionate level
for decision-making. The principle of
subsidiarity must therefore guarantee both regional rights and
local autonomy (2). The fact is that the Community takes
action only if and insofar as the objectives of the proposed
action cannot be sufficiently achieved by the Member States
and can therefore, by reason of the scale or effects of the
proposed action, be better achieved by the Community.

1.8.
notes that despite the political and legal progress
achieved since the subsidiarity principle was enshrined in the
Maastricht Treaty, it has not been fully implemented and has
failed to have the expected impact on the functioning of the
Union; considers that a better delimitation of powers in the
Union would make it significantly easier to define, implement
and monitor this principle.

submits this opinion, a synthesis of the views expressed
1.9.
by the Committee in the course of its last four-year term of

The Committee of the Regions

2.1.
shares the views of the European Parliament on the
shortcomings of the Treaties in their current form and in the
operation of the Community as a whole with regard to the
division of powers, a result of the lack of consistency and
transparency caused by the proliferation of instruments and
procedures; considers that the existing division of powers is
also unclear, since the EC Treaty sets out only very general
objectives and does not fix the precise scope of the relevant
measures (3).

2.2.
considers that the process proposed by the Heads of
State or Government in the Laeken Declaration on the future
the Union, aimed at achieving a better division and
of
definition of competence in the European Union, should be
seen in the wider context of a new definition of the European
project, and warns against confining the delimitation of powers
to a purely technical revision of the Treaty (4).

2.3.
considers that the support and involvement of Euro-
pean citizens in achieving a genuine political Union can only
be secured if European integration proceeds transparently with
respect to powers and responsibilities, and is convinced that
European democracy will only work properly if the Treaties
and decision-making procedures become more transparent for
citizens and easier to implement (5).

(1) Cf. CoR memorandum on the involvement of the Committee of
the Regions in the structured debate on the future of the Union
(CdR 325/2001 fin).

(2) Cf. CoR final declaration on new forms of governance in Europe:
more democracy and grass-roots representation (CdR 379/
2000 fin).

(3) Cf. CoR opinion: Developing a genuine culture of subsidiarity. An

appeal by the Committee of the Regions (CdR 302/98 fin).

(4) Cf. CoR resolution on the preparations for the Laeken European
Council and the further development of the European Union in
the context of the next intergovernmental conference in 2004
(CdR 104/2001 fin).

(5) Cf. CoR report on proximity (CdR 436/2000 fin).

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2.4.
favours a constitutional approach and thus approves
the European Parliament proposal to incorporate all treaties
into a single text composed of two parts:

a)

b)

a ‘constitutional’ or basic section containing the preamble,
the objectives of the Union, fundamental rights and the
provisions concerning the institutions and individual
conferred powers, which could only be amended by an
IGC;

a section dealing specifically with technical, procedural
and institutional matters, in so far as these can be dealt
with under secondary law, which could be amended
under the lighter Community procedure not involving an
IGC. In any case, the transfer of Member States’ powers
to the European Union would require the agreement of
Member States’ parliaments (1).

2.5.
considers that the objective of a better distribution of
powers between the European Union, the Member States, the
regions and the sub-regional levels is intrinsically linked to the
Union’s legal status and tasks. There is thus a need :

— in the light of the progress of the European project, to
identify and clarify the policies to be implemented in
order to ensure its success;

— to bring the European Union closer to the citizen (2). The
subsidiarity principle must serve as the yardstick for the
redefinition of European Union tasks. In this connection,
the principles governing apportionment of responsibiliti-
es and powers between central, regional and local govern-
ment in the individual Member States must be respected.
Wherever Community action is not absolutely essential,
Member States, regions and local authorities should, as
decision-making levels that are in touch with citizens’
concerns, be reinvested with more political responsibility;

— to allocate political responsibility clearly e.g. by redefining
the European Union’s powers under the Treaty. Neither
the transfer of further powers — nor the transfer back of
powers — should be taboo in this context (3).

2.6.
is convinced that enlargement of the European Union
must go hand in hand with a concentration of the Union’s

tasks on genuinely European challenges, and calls for the
concentrated and reformed tasks of the European Union to be
set out clearly in the Treaties or the future constitutional
Treaty; also believes, however, that the European Union should
continue to be able to react flexibly to the growing challenges
and be given the tools necessary to tackle them successfully (3).

2.7.
considers, however, that the political objectives the
Union has set itself, as listed in Article 2 of the Treaty, must be
retained.

2.8.
is in favour, therefore, of maintaining the European
Union’s capacity for action and adopting a dynamic approach
towards the subsidiarity principle.

supports the methodological approach proposed in
2.9.
this draft report concerning the classification of powers
between the exclusive powers of the Union, the exclusive
powers of the Member States, shared powers and secondary
powers.

2.10.
reiterates that, under the subsidiarity principle, the
European level must, in all matters for which it has not been
assigned exclusive competence, first allow the other levels —
i.e.
the Member States and thus their regions and local
authorities — to take any action that may be necessary. This
principle is enshrined in the Treaties and is binding on all
the European institutions — the Council, Commission and
Parliament (4).

considers that the European Commission has inter-
2.11.
preted exclusive Community competence in Article 5(2) of the
EC Treaty very broadly in the past, which has curtailed the
impact of the subsidiarity principle (1).

2.12.
emphasises that many of the competences of the
future European Union must remain shared competences —
shared not only between the EU and national governments,
but also, in line with the principle of subsidiarity, with regional
and local government, while respecting the provisions of the
constitutions of the Member States; further notes that the term
‘competence’ is not limited to a power to legislate, but includes
other legal powers of action within the responsibility of each
sphere of government (5).

(1) Cf. CoR opinion on the Commission report to the European

Council: Better Lawmaking 1999 (CdR 18/2000 fin).
(2) Cf. also CoR report on proximity (CdR 436/2000 fin).
(3) Cf. CoR resolution on the preparations for the Laeken European
Council and the further development of the European Union in
the context of the next intergovernmental conference in 2004
(CdR 104/2001 fin).

(4) Cf. CoR memorandum on the involvement of the Committee of
the Regions in the structured debate on the future of the Union
(CdR 325/2001 fin).

(5) Cf. CoR resolution on the outcome of the 2000 Intergovernmental
Conference and the discussion on the future of the European
Union (CdR 430/2000 fin).

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2.13.
considers that it is essential also to improve the legal
machinery for the delimitation of competences, and proposes
that the possibilities for a more systematic and better classifi-
cation of EU competences be examined (1).

3. Any new division and definition of powers within
the European Union must contain safeguards for the
powers of the regions and local authorities

urges that consideration be given to the question of
2.14.
the delineation of powers between the different levels of
government with a view to ensuring the conditions necessary
for good European governance.

2.15.
portionality, which underpins the system of shared powers.

highlights the importance of the principle of pro-

2.16.
favours a hierarchy of legislation and believes that a
distinction should be made between the Community’s different
legal instruments (regulations, directives and decisions) in the
interests of efficiency and transparency; believes that European
directives must continue to be general
in nature and the
practical arrangements for applying European Union law left
to the discretion of regional and local authorities, thus making
it possible to ensure that cultural differences within the
European Union — which are part of its wealth — are
respected (2).

2.17.
calls for the financial and administrative conse-
quences of Community legislation for citizens and the local
authorities responsible for its implementation to be taken into
account (3).

2.18.
believes that a better division of responsibilities would
lead to increased use of majority voting and so improve the
efficiency of the EU overall (4).

stresses that the right to determine the European
2.19.
Union’s tasks must remain a matter for the Member States, and
opposes proposals for procedures enabling Treaty revisions to
be made by the Community in its own right, and especially
proposals to abolish the requirement for ratification by the
national parliaments (5).

(1) Cf. CoR resolution on the outcome of the 2000 Intergovernmental
Conference and the discussion on the future of the European
Union (CdR 430/2000 fin).

(2) Cf. CoR Report on proximity (CdR 436/2000 fin).
(3) Cf. CoR opinion on the implementation of EU law by the regions

and local authorities (CdR 51/1999 fin).

(4) Cf. CoR opinion on the Commission report to the European

Council: Better Lawmaking 1999 (CdR 18/2000 fin).

(5) Cf. CoR resolution on the preparations for the Laeken European
Council and the further development of the European Union in
the context of the next intergovernmental conference in 2004
(CdR 104/2001 fin).

The Committee of the Regions

3.1.
does not wish the debate on the division of powers to
result in the European Union being asked to take control of
the territorial organisation of the Member States, since this is
a matter for them alone; rather, asks that account be taken of
the very important role of the regions and local authorities in
implementing Community legislation, and their respective
powers be guaranteed (1).

3.2.
points out, in this respect, that the principles applicable
to the division of responsibility and power between central,
regional and local government in the individual Member States
must be respected.

3.3.
recalls, in this connection, the proposal contained in
the European Parliament’s resolution on Better Lawmaking
1998/1999, which urged that ‘in accordance with the subsidi-
arity principle and the political and national diversity of the
European Union, the amendments made to the Treaties should
specifically include recognition of, and respect for, the political
and legislative powers of the Member States’ internal political
units (federated states, autonomous communities, regions) in
their executive, legislative and judicial relations with the EU
institutions’ (6).

supports the proposal to grant the regions a specific
3.4.
status in the Treaty,
in the same way as that of national
parliaments is recognised, and to detail the areas in which
the regions are involved, their responsibilities, the practical
arrangements and procedures governing their participation
and the tools for follow-up and evaluation; the principle of
subsidiarity must however be incorporated at subnational
level, i.e. not only regional but also local level, owing to the
fact
in many Member States local authorities share
administrative responsibility for Community-related matters.

that

3.5.
regrets, however, the excessively centralist approach
proposed, on the basis of which national governments would
have the sole right to draw up the list of regions classed as
‘partners of the Union’, and proposes that this approach be
reviewed by the European Parliament in consultation with the
Committee of the Regions, so as to ensure that the procedures
for granting this status do not put a stop to the process of
change that
is taking place by creating distortions both
between the Member States and within them.

(6) European Parliament resolution on the Commission reports to
the European Council: Better Lawmaking 1998/1998 (A5-0269/
2000).

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3.6.
believes that recognising the status of regions and local
authorities would represent a practical expression of the
principles set out in the Charter of Fundamental Rights of the
European Union, which the Committee of the Regions wishes
to see incorporated into the Treaty and given binding force,
according to which ‘the Union contributes to the preservation
and to the development of
these common values while
respecting the diversity of the cultures and traditions of the
peoples of Europe as well as the national identities of the
Member States and the organisation of their public authorities
at national, regional and local levels’ (1).

3.7.
reiterates its call for the Union’s shared principles to be
extended to encompass the principles of local and regional
autonomy, whilst respecting the internal constitutional pro-
visions of the Member States.

3.8.
welcomes the fact that the European Parliament has
taken into consideration the specific situation of the regions
with legislative powers in its examination of the division of
powers.

points out, however, that in many Member States, local
3.9.
and other regional authorities also have a very large degree of
autonomy and administrative power with regard to the
implementation of Community law, and therefore asks the
European Parliament also to take account of this fact.

3.10.
calls for the principles of subsidiarity and pro-
portionality, as referred to in the Treaties, to be supplemented
by provisions designed to ensure that the powers of the regions
and local authorities are respected.

3.11.
reiterates its call for the Committee of the Regions
and the regions with legislative powers to be granted the right
to bring proceedings before the European Court of Justice in
cases where the subsidiarity principle is not respected.

(1) Charter of Fundamental Rights of the European Union (OJ C 364,

18.12.2000, p. 1-22).

Brussels, 13 March 2002.

3.12.
draws attention to the call by the European Parliament
in its resolution on Better Lawmaking 1998/1999 for ‘the
increasingly important role of the Committee of the Regions
in the application of the subsidiarity principle (to) be recog-
nised and extended’, and calls for the European Parliament’s
delegation to the Convention to press home this demand (2).

believes that enhancing the CoR’s institutional role is
3.13.
the necessary corollary of the growing impact of European
legislation on the sphere of responsibilities of regional and
local authorities if a better division and coordination of powers
within the European Union is to be effectively guaranteed.

3.14.
proposes, thus, that in the future architecture for the
European institutions, the role played by regional and local
authorities in Europe be upgraded, in accordance with the
subsidiarity principle, so as to reflect their importance for
European unification and in bringing the Community’s activi-
ties closer to the citizen (3).

considers, therefore, that it will be necessary to give
3.15.
the Committee of the Regions full
institutional status, to
provide it with a structure enabling it to carry out efficiently
the duties assigned to it, and to grant it powers which go
beyond a purely consultative role, including the right to bring
Justice, thereby making it a
actions before the Court of
participant in the European decision-making process in which
all political levels in the Member States — from local authority
to region with legislative powers — have their place and share
responsibility (3).

3.16.
calls on the European Parliament, and particularly its
delegation to the Convention on the future of the European
Union, to ensure (a) that the work of the Convention takes
account of the need to provide political and legal safeguards
for the powers of the regions and local authorities and (b) that
the Committee of the Regions is closely associated with any
new definition and division of powers within the European
Union.

(2) European Parliament resolution on the reports of the Commission
to the European Council: Better Lawmaking 1998/1999 (A5-
0269/2000).

(3) Cf. CoR resolution on the outcome of the 2000 Intergovernmental
Conference and the discussion on the future of the European
Union (CdR 430/2000 fin).

The President

of the Committee of the Regions

Albert BORE