Opinion of the European Economic and Social Committee "addressed to the 2003 Intergovernmental Conference"
Date: 2003-09-24
Institutions: European Economic and Social Committee
Subjects: European Constitution, European treaties, intergovernmental conference (EU)

14.1.2004

EN

Official Journal of the European Union

C 10/43

Opinion of the European Economic and Social Committee ‘addressed to the 2003 Intergovern-
mental Conference’

(2004/C 10/12)

At its Plenary Session on 21 February 2002, the European Economic and Social Committee, acting under
Rule 29, paragraph 2, of its Rules of Procedure, decided to draw up an opinion addressed to the 2003
Intergovernmental Conference and, under Rule 19, paragraph 1, of its Rules of Procedure, the Committee
decided to establish a subcommittee to prepare its work on the matter.

The subcommittee adopted its draft opinion on 15 September 2003. The rapporteur was Mr Malosse.

At its 402nd plenary session on 24 and 25 September 2003 (meeting of 24 September), the European
Economic and Social Committee adopted the following opinion by 118 votes to 7 with 9 abstentions.

1. European Economic and Social Committee’s main

recommendations to the IGC

— boosting the democratic legitimacy of economic, social
and monetary policies by involving the European Parlia-
ment and the EESC more;

The draft constitutional Treaty is the fruit of a demo-
1.1.
cratic, transparent and open process which will leave its mark
on history. It stipulates that any changes will henceforth be
made by a Convention or at
the very least, where less
fundamental alterations are involved, after consulting the
European Parliament. This method has demonstrated its
effectiveness: the draft does in fact afford genuine value added
for the public in terms of readability, simplification, a higher
profile for the Union and democratisation.

1.1.1. What is at stake next is to establish, on a permanent
basis, but also with a view to revising the constitutional Treaty,
procedures securing more public involvement and more
structured dialogue with civil society organisations. This is the
only way to confer greater legitimacy on the Union and make
civil dialogue work, based on the principle of participatory
democracy.

The European Economic and Social Committee (EESC)
1.2.
asks that the IGC not upset
the balance and the broad
principles achieved through consensus in the draft Treaty
submitted to the Council Presidency on 18 July 2003.

1.3.
However, bearing in mind the debates which will be
held at European and national level, the EESC recommends
that those taking part in the IGC supplement, detail and clarify
certain points in such a way as to increase the trust and
involvement of the general public and civil society organis-
ations. This includes:

— introducing stronger provisions for implementing the
Union’s economic and social policies and improving
governance in the Euro zone;

— bringing priorities up to date and simplifying the instru-
ments for economic, social and territorial cohesion;

— making common foreign and security policy more demo-
cratically accountable and making it more consistent and
effective;

— defining more precisely the scope and arrangements
for putting into practice the principle of participatory
democracy, so as to give tangible expression to civil
dialogue and the tasks of the European Economic and
Social Committee in this context;

— expanding the mandatory fields of consultation of the
EESC to cover the common asylum and immigration
policy, application of the principle of non-discrimination,
and culture; and

— acknowledging the role of civil society organisations in
implementing the principles of subsidiarity and pro-
portionality, granting the EESC the right of appeal to the
Court of Justice.

2. Overall assessment of the draft constitutional Treaty

2.1. General comments

2.1.1.
The draft Treaty establishing a Constitution for
Europe, submitted to the European Council Presidency on
18 July 2003, represents a milestone in the European venture.
It is the outcome of a democratic, transparent and open
process inspired by the success of an earlier Convention which
drew up the Union’s Charter of Fundamental Rights.

C 10/44

EN

Official Journal of the European Union

14.1.2004

The European Convention which prepared the draft
2.1.2.
constitutional Treaty was a body with a legitimate basis: the
vast majority of its members — nearly two thirds — were
members of parliament, either from the European Parliament
or from Member States’ or accession countries’ parliaments.
Alongside them were representatives of Member States’
governments and the Commission, as guardian of the treaties,
participating on an equally legitimate basis; thus the unique
character of the EU as both a union of States and a union of
the
peoples was respected. The representative nature of
Convention was given a further boost by the presence of the
social partners, the European Economic and Social Committee,
the regions, through the Committee of the Regions, and the
Ombudsman as observers, even though their full participation
would have lent even greater legitimacy to the Convention.

2.1.3.
The Convention generally operated in a transparent
fashion, and steps were taken to ensure that, as far as possible,
members of the public who were interested had access to its
work and documents, even though its methods could still be
improved upon. The Convention’s work began with a ‘listening’
phase during which representatives of civil society and youth
were asked to give their views. The way this consultation was
organised did not really allow everyone to express their views
nor did it allow for in-depth debate, but these beginnings of
dialogue could foreshadow genuine participatory democracy
which, as is called for in the Laeken declaration, might actually
help ‘bring citizens (...) closer to the European design and the
European institutions’. These efforts to hear people’s views and
ensure transparency were complemented and taken further by
the EESC,
in particular through the regular information
meetings and dialogue with European civil society organis-
ations and networks which it organised in cooperation with
the Convention’s praesidium, its joint work with national ESCs
and similar bodies and its initiatives to involve civil society
organisations in the accession countries.

2.1.4.
The Convention was also efficient, since — operating
by consensus — it managed to hammer out a complete,
balanced draft in the required time, meeting the requests made
at the Laeken European Council of 14 and 15 December 2001.
It was able to generate its own momentum, which also meant
that it could place a broad interpretation on the Laeken
Declaration.

The Intergovernmental Conference (IGC) has a legit-
2.1.6.
imate, credible draft before it. Copies of the draft are now
being circulated extensively and brought to the public’s notice.
This is a unique situation where the democratic process is
preceding the diplomatic one. The IGC is in itself only one
stage prior to the final, but fundamental, phase of ratifying the
Treaty establishing a constitution for Europe in each of
the Member States, be it by referendum or parliamentary
ratification. In fact this is the first constitutional text which
clearly engages the citizens of the EU in a common future.

One of the points at stake in the draft constitutional
2.1.7.
Treaty is thus to create a more understandable vision of the
role and objectives of the Union, which would win the support
of the people of Europe. This can only be achieved if the
institutions of Europe, including the EESC, gain and maintain
the confidence of the general public.

The European Economic and Social Committee sup-
2.1.8.
ports the draft constitutional Treaty drawn up by the Conven-
tion. The EESC set out
its priorities to the latter in its
September 2002 resolution (1), and played an active part in the
Convention’s work through its three observers: Roger Briesch,
Göke Frerichs and Anne-Marie Sigmund (2). For the sake of
efficiency and democracy, the Committee recommends that
the IGC does not call into question the general balance of the
draft constitutional Treaty. The EESC also calls for the IGC to
be transparent, by establishing a system for informing and
consulting civil society organisations at European and national
level.

2.1.9.
Nevertheless, the EESC feels that it would be legit-
imate to raise two key questions regarding the draft consti-
tutional Treaty:

— Does the draft Treaty satisfy the public’s expectations, as
set out in the Laeken Declaration and identified by the
EESC through its members — who come from the main
national civil society organisations – and at the many
conferences, hearings and meetings organised by the
EESC on this issue?

— Can the draft constitutional Treaty be improved still

further without upsetting its general balance?

2.1.5.
The Convention succeeded in involving national
parliaments, previously to a great extent left out of the early
stages of major European debates. It also allowed accession
countries to be involved in the work on an equal footing with
Member States, apart from the right to vote which, in any case,
was not used by the Convention.

(1) EESC Resolution of 19.9.2003 addressed to the European Conven-
tion, adopted at the plenary session of 18 and 19 September
2002 — OJ C 14.3.2003.

(2) Alternates: Jan Olsson, Giacomo Regaldo (replacing John M. Little
as of September 2002) and Mario Sepi (replacing Gianni Vinay as
of September 2002).

14.1.2004

EN

Official Journal of the European Union

C 10/45

2.2. The value added of the new constitutional Treaty for the public

at large

Treaty also responds to this concern to help people identify
with the Union and its values. The creation of an independent
authority to monitor protection of personal data (Part I,
Article 50) bespeaks, moreover, a concern to make the Union
more transparent to the general public.

T h e a c t u a l
t h e C h a r t e r o f F u n d a m e n t a l R i g h t s ( P a r t s
a n d I I )

c o n s t i t u t i o n a l p r o v i s i o n s a n d
I

2.2.1. With this draft Treaty, Europe has, for the first time,
announced a clear goal: to establish political Union on behalf
of the people and States of Europe. It is of key importance,
and highly positive, that Part I (Articles 2, 3 and 4) includes a
clear definition of the Union’s objectives and values. The EESC,
which contributed to this part via amendments, welcomes the
balanced wording of these articles. As regards the social
protection objective mentioned in Article I-3, the original
wording, calling for a high level of ... social protection, should
be retained. The inclusion of the Charter of Fundamental
Rights in Part II represents an indisputable victory for civil
society. Members of the public in Europe will be able to cite
in
this charter in any national court
the provisions of
connection with the implementation of European policies.

it

The draft Treaty not only bears all the hallmarks of
2.2.2.
find its place in the collective
a constitution which will
consciousness, but
is also more understandable, more
readable and simpler than the current treaties. The amalga-
mation of the three former pillars and the single name are
designed to make it easier for people to identify with the Union,
even though the disappearance of the term ‘Community’, with
its unifying connotations, is to be regretted. The draft Treaty
allows the general public to see which areas of competence are
exclusive to the Union, which are shared and which are subject
to coordination; hence it will be clear which areas remain
matters of national, regional and local responsibility. The new
Treaty, at least as far as Parts I and II are concerned, is very
readable. Jargon, although there is still a great deal of it, has
in many cases been replaced by terms which are more
understandable to the general public, and regulations have
been replaced by European laws, and directives by European
framework laws. Clearer or new references about the suspen-
sion of Union membership rights, voluntary withdrawal from
the Union, and the political solidarity clause all strengthen the
image of a shared and accepted common commitment for the
future.

2.2.3.
The draft Treaty raises the profile of the Union. Thus,
the principle of a stable Council presidency, without upsetting
the institutional balance, and the creation of a post of minister
of foreign affairs for the Union may help give European
policies a more personal touch. The introduction of a special
article on the symbols of the Union in Part IV of the draft

2.2.4.
The draft Treaty brings some improvements in terms
of consolidating the Union’s democratic legitimacy and making
the decision-making process more efficient. The granting of
responsibilities to national parliaments (‘early warning’, right
of appeal) may be understood as both a way of ensuring
compliance with the subsidiarity principle and as a means of
involving national parliaments in the European process. Elec-
tion of the European Commission’s president by the European
Parliament and stronger powers for the president as regards
membership of the College of Commissioners are both steps
designed to give greater legitimacy to an institution which is
the driving force behind the Union and guardian of the
Community method. More powers for the Parliament will
reinforce the general public’s perception of the importance of
this institution. Extension of both qualified majority voting
and the co-decision procedure should also confer greater
legitimacy on the Union’s decisions and actions and make
them more effective.

2.2.5.
The future Treaty contains an entire, completely new
title (Part I, Title VI) on the democratic life of the Union. It
lays down the principles of representative democracy and
participatory democracy and establishes the role of the social
partners and autonomous social dialogue, the attributes of the
European Ombudsman and the transparency principle. This
title also introduces a right of petition, for petitions supported
by no fewer than one million citizens; this can be seen as
significant progress for civil society as long as the implemen-
tation
follow-up
allow for
(Article 46(4)). The dialogue to be established with churches
and philosophical and non-confessional organisations is evi-
dence of the fact that the Union wishes to be more tuned in to
the views of society (Article 51).

arrangements

effective

2.2.5.1.
The Committee particularly welcomes the fact that
the draft Treaty acknowledges that participatory democracy is
an integral part of the European social model. For the Union
to gain more democratic legitimacy, the institutions’ powers
and responsibilities must not only be clearly defined, but the
active involvement of civil society must also be guaranteed.
Support from active, committed members of the public and
the organisations which express their views and act on their
behalf, is indeed vital in order to put into practice Europe’s
declared ambition to be an area of freedom, democracy, justice
and security.

C 10/46

EN

Official Journal of the European Union

14.1.2004

T h e p o l i c i e s a n d f u n c t i o n i n g o f
( P a r t

I I I )

t h e U n i o n

In Part III, which deals with the policies and func-
2.2.6.
tioning of the Union, substantial progress has been made in
terms of the democratisation (extension of qualified majority
voting, involvement of the European Parliament and the Court
of Justice) of the area of freedom, security and justice.

However,

2.2.6.1.
it is to be regretted that, despite the
amalgamation of the three pillars, specific provisions have
been maintained for implementation of the common foreign
and security policy, despite a certain amount of progress and
the prospect of a common diplomatic service. Unanimity
remains the rule and no involvement of the general public or
of civil society representatives has been envisaged at European
level. Consequently, the provisions on the common foreign
and security policy should include rules on consultation of EU
civil society representatives. This is all the more important to
ensure the effectiveness and legitimacy of the European Union’s
actions in these areas. The EESC suggests that this matter be
examined thoroughly and reviewed in the course of
the
Intergovernmental Conference, without upsetting the broad
lines of the draft constitutional Treaty.

2.2.7.
The EESC welcomes the affirmation of economic,
social and territorial cohesion, to which it attaches considerable
importance, and endorses the principles underpinning the EU’s
policies in this sphere. It would stress that this policy must
mainly aim to optimise the human, cultural and natural
resources of the less developed countries and regions, thus
securing equality of opportunity. With a view to enlargement
and a knowledge-based economy, what is needed is a reform
of priorities and simplification of implementing arrangements.
In this connection, the Committee has suggested a single
intervention fund for territorial cohesion (1). It consequently
welcomes the fact that Article 119 of Part III provides for the
possibility of grouping all the structural funds together.

2.2.8.
It also welcomes the introduction of a new provision
on the importance of the role of services of general interest for
promoting social and territorial cohesion in the Union.
However, the promotion of a high standard of services of
general interest should have been included among the objec-
tives in Article I-3.

2.2.9.
On the other hand, a number of sections in the draft
constitutional Treaty do warrant being beefed up. Only modest
progress has been made, for example, on economic, social,
employment and sustainable development issues. Nevertheless,

the Committee welcomes the fact that both full employment
and a highly competitive social market economy have been
explicitly mentioned in the constitutional Treaty as objectives
of the Union, but it would point out however that the
corresponding articles in Part III should also be worded in
such a way as to reflect this. In addition, the EESC calls for the
relevant articles to state more clearly that economic and
monetary policy must contribute to attainment of the objective
of growth and full employment.

2.2.10.
Proposals for the coordination of economic and
employment policies do not break much new ground in
relation to current provisions and practices, especially as
regards Euro-zone governance. The public’s expectations most-
ly focus on the notion of a comprehensive growth-promoting,
job-creating blueprint for society. These keen expectations,
which are consistent with the ambitions the Union set for itself
at the March 2000 Lisbon summit, are largely shared by civil
society in the accession countries, as the EESC has been able
to gauge through the surveys and meetings it has organised.
The EESC has itself formulated concrete proposals on econ-
omic and social governance (2).

2.2.11.
Excessive distortions of competition in the single
market are damaging to its cohesion and render it less dynamic
in pursuit of the Lisbon objectives. It is for this reason that
extending the scope of qualified majority voting would open
up genuine prospects for convergence in an enlarged Europe.
In matters of taxation, and on the question of unanimity, the
procedure for strengthening co-operation could be used, which
would enable a group of Member States to move forward as
pathfinders in accordance with Community rules, without
creating any distortions of competition.

3.

Improving the draft constitutional Treaty so as to
generate more public support for it in Europe: the
EESC’s proposals

3.1. Defining more precisely the scope and arrangements for
putting participatory democracy into practice (Part I, Article I-
46)

The principle of participatory democracy has
3.1.1.
assumed key importance in the wake of the Laeken European
Council’s request
that citizens be brought closer to the
European design and the European institutions. Through

(1) See EESC exploratory opinion of 25.9.2003 on ‘Economic and
social cohesion: regional competitiveness, governance and cooper-
ation’ — CESE 1178/2003.

(2) See EESC own-initiative opinion of 12.12.2002 on ‘Economic
governance in the European Union’ — OJ C 85 of 8.4.2003.

14.1.2004

EN

Official Journal of the European Union

C 10/47

the meetings, conferences and hearings it has organised
throughout the Convention’s work, the Committee has noted
that in the Member States and the accession countries, as well
as in the major European civil society networks, there were
very high expectations of the draft Treaty, and then a certain
disappointment with its lack of content in this domain.

This process of dialogue and consultation when framing
European policies must nevertheless be extended to all
levels of government within Europe.

— A new Article 297-III should be inserted as follows so as

to define the Committee’s tasks clearly:

3.1.2.
Although Article I-46 of the draft constitutional
Treaty represents a fundamental achievement, it does not go
as far as the EESC and civil society organisations would
have liked and did in fact ask for. Indeed the principle of
participatory democracy entails not only the consultation, but
also the active participation of all parties representing civil
society organisations, both at an early stage in the proceedings,
when policies are being shaped and decisions made, and also
later on when they are being implemented and followed up.

3.1.3.
In this connection, the Committee regrets the lack of
adequate operational provisions for implementing this prin-
ciple and thus for strengthening the confidence of European
civil society in the genuinely participatory nature of the Union.
By allowing for the participation of those directly concerned,
in enhancing the democratic
civil dialogue is instrumental
legitimacy of the European Union. For this civil dialogue to be
effective, it is however necessary to specify the framework and
the forum within which it is held. The EESC’s natural focus,
thanks to its membership and its brief, is to ‘facilitate’ civil
dialogue and provide the institutional forum for this. Thus,
without compromising the draft constitutional Treaty, the
Committee calls for:

— The European Economic and Social Committee, which
should from now on preferably be designated ‘European
Economic and Social Council’, to be included in the
list of institutions and bodies making up the Union’s
institutional framework (Part I, Article 18 (2)).

‘As part of the advisory function conferred on it
by Article I-31 of the Constitution, the European
Economic and Social Council shall:

— assist the Union’s legislative and executive insti-
tutions in the process of decision- and policy-
making and in their implementation;

— assist the European Union in organising the
social dialogue, at the joint request of the social
partners and while respecting their autonomy;

— facilitate dialogue between the Union and the
organisations
society in
representing civil
accordance with the principles laid down in
Article I-46 (1 and 2);

— support the Union’s external action by main-
taining dialogue with civil society organisations
in non-EU countries and blocs’.

3.1.4. Moreover, effective follow-up to EESC opinions (be
they consultative, exploratory or own-initiative opinions)
provides a fundamental guarantee of its effectiveness in a
genuinely participatory democracy. For this reason, the EESC
is proposing to supplement Article III-298 as follows:

‘The institutions shall
Committee on the follow-up to its opinions’.

transmit regular reports to the

The Committee’s very nature and brief mean that it is
indeed making a full contribution to achieving the
Union’s objectives and to boosting its democratic legit-
imacy in the general interest of both the Union and its
Member States.

Moreover, including the EESC in the Article 18 list would
make Article 46 (2) more effective; this stipulates that
‘the Union Institutions shall maintain an open, trans-
parent and regular dialogue with representative associ-
ations and civil society’.

3.2. Broadening the scope of representative and participatory

democracy

3.2.1.
The EESC regrets the fact that in an area of such
importance as the coordination of economic and employment
policies, there is no provision for rules allowing either the
public (through the European Parliament) or civil society
(through the European Economic and Social Committee) to be
involved or consulted. This anomaly should be rectified by the
IGC to allow for consultation of the European Parliament and
the EESC on Member States’ broad economic policy guidelines
(BEPGs) (Article III–71).

C 10/48

EN

Official Journal of the European Union

14.1.2004

The scope of the ‘open method of coordination’ has
3.2.2.
been expanded to cover new spheres: social policy, industrial
competitiveness, research and public health. However, it is
regrettable that there are no provisions for effectively involving
the European Parliament, national parliaments, the EESC, the
social partners and other civil society players in those areas
which concern them.

3.2.3.
As regards the areas in which the EESC must be
it would be appropriate — given the EESC’s
consulted,
membership and areas of expertise — to expand these to
include the following:

— Application
(Article III-7)

of

the

non-discrimination

principle

— The common asylum and immigration policy (Articles III-

167 and III-168)

— Culture (Article III-181) (1).

This would give tangible form to the Union’s wish to reinforce
the democratic legitimacy of Community policies in areas
which are of special importance to the European public and to
civil society organisations.

3.3. Civil society organisations and the subsidiarity principle

3.3.1.
The application of the subsidiarity principle was one
of the most hotly debated issues at the Convention. It was
one of the Laeken European Council requests. The draft
constitutional Treaty quite rightly recognises the role of
national parliaments in monitoring subsidiarity. It also involves
the Committee of the Regions which, without however having
institutional status, can submit appeals regarding legislative
acts where the constitution Treaty requires that it be consulted
prior to their adoption.

(1) The Committee would point out that Article I-31 of the draft
constitutional Treaty stipulates that the European Economic and
Social Committee shall consist of representatives of civil society,
inter alia those operating in the area of culture. It is therefore
logical to stipulate that the Committee be consulted on culture-
related matters.

Brussels, 24 September 2003.

The Protocol on the application of the principles of
3.3.2.
subsidiarity and proportionality recognises the need for wide-
ranging consultation before proposing and deciding on legis-
lative acts. Nevertheless, this protocol, which gives national
parliaments the right to alert the Union to problems and
Member States the right to appeal (if necessary, on behalf of
their national parliaments), totally ignores the role of civil
society organisations — as represented inter alia by the EESC
— in implementing the subsidiarity principle, without regard
for Article I-46 on participatory democracy.

3.3.3.
Civil society players are as well placed as regional
and local authorities to judge whether certain proposals for
legislative or regulatory acts might encroach on their fields of
competence; this concerns as much the social partners, in their
collective bargaining activities, as the other civil society
operators, for all alternative forms of regulation (co-regulation,
self-regulation, codes of good conduct, etc.) which can comp-
lement or replace legislative action. The European Com-
mission, in its White Paper on European Governance (2), has
itself highlighted the importance of
these new ways of
organising society in the future, which are part of functional
subsidiarity and also guarantee a better response to the public’s
concerns and demands as well as more effective action by the
Union.

3.3.4.

For this reason, the EESC is proposing:

— firstly,

that

the Protocol on the application of

the
subsidiarity and proportionality principles be sup-
plemented accordingly, and

— secondly, also with a view to respecting the principle of
parity with the Committee of the Regions, that the
European Economic and Social Committee be granted
the right of appeal to the Court of Justice regarding
legislative acts about which the constitutional Treaty
the EESC be consulted prior to their
requires that
adoption, and that Article III-270 of this Treaty be
amended accordingly.

In any case, if the EESC were included in the institutional
framework of the Union,
this right of appeal would be
conferred on it automatically.

(2) COM(2001) 428 final, 25.7.2001.

The President

of the European Economic and Social Committee

Roger BRIESCH