"Montesquieu and the European Union"

Address of Belgian Prime Minister, Guy Verhofstadt 18 November 2002, Bruges

Mr. President,

Mr. Rector,

Excellencies,

Ladies and Gentlemen,

The College of Europe, located in the heart of the Cultural Capital of Europe, has a rich history of prominent speeches – one of them being even notorious – about the future of the European Union. I am particularly grateful to you, Mr. Rector, and to your collaborators. You give me the opportunity today to state my views on some important European issues.

In the months ahead of us, and in any event before the elections for the European Parliament in June 2004, we will have to finalise two ambitious projects. First, in 2004, we will enlarge the Union from 15 to 25 Member States and, subsequently, in 2007, to 27 Member States. Second, at the end of 2003 or, at the latest, at the beginning of 2004, we will adopt a European Constitution.

The upcoming change is radical, one might almost say brutal. After the accession of Slovenia in 2004, the other republics of the former Yugoslavian Federation and Albania will ultimately join the Union as well. The continent will then be unified. What only fifteen years ago appeared as an illusion, is becoming reality. With 30 Member States the Union is bound to remain an effective and strong organisation, which provides common, that is to say “Community”, and cross-border answers to the challenges of our times.

I may remind you of the fact that the Union has adopted criteria, the so-called Copenhagen criteria, with a view to determining whether a country is in a position to accede to the Union or not. These criteria determine when negotiations are started with a candidate country. The latter must meet a number of political and economic requirements. These are: respect for democracy and the rule of law, the protection of minorities, freedom of speech, freedom of the press, the fight against corruption by an independent police force and judiciary, the presence of an efficient public administration, the capacity to cope with market pressure.

I remind you of this because today a false debate is taking place about the borders of Europe. False, because it relates in essence only to Turkey. Some dream of a mono-cultural Europe, the Europe of Christian values, as if Europe were not also founded on the Jewish heritage as well as on a strong humanist tradition. The question raised is no longer whether Turkey fulfils the Copenhagen criteria. Instead, one hears the following reflections being made: Is Turkey a  genuine European country? Is it not geographically too peripheral? Is it not primitive? Does it have a European vocation? In reality, these questions serve as a camouflage for the thesis that Turkey is a Muslim country and hence does not belong to the European family.

This reasoning is absurd. It runs counter to the achievement of the Enlightenment, that of separation of Church and State, which put an end to age-old religious conflicts. A separation of Church and State that we praise today in our own society to newcomers from Muslim countries as an essential value.

The European Union cannot be less tolerant than the former Turkish Empire in which Greece, Romania, Bulgaria and Serbia could remain Christian for centuries. For five hundred years until the beginning of the previous century, Turkey ruled over an important part of the Balkan. During all this time, it was one of the great European powers. Turkey has its place in the European Union. The question whether Turkey may accede to the Union was answered three years ago in Helsinki.

At what moment negotiations for accession with Ankara will start will depend on when Turkey fulfils the Copenhagen criteria. Thus, as to the fixing of that date, the ball is in Turkey’s court. And the outcome of the recent parliamentary elections does not change anything. The Turkish voter has freely decided. The new government in Ankara must be judged on its acts.

Ladies and Gentlemen,

Uniting Europe, that long-cherished dream of all artists and intellectuals in every city of Central Europe, is now within reach. It is a dream we share with them since the iron curtain split our continent into two parts. In the next five years twelve new Member States will come to reinforce the Union. The scope of enlargement makes some people shiver, especially when they start counting how much money all of this will cost.

But, we do not have the choice. We would be guilty of a failure of assistance if we did not offer the newly liberated countries of Central and Eastern Europe the perspective of accession to the Union.  Without that perspective, the issue of the large Russian minorities in the Baltic States would not have been settled so peacefully! Without that perspective Slovakia would not have given up so readily the option of nationalism! Romania and Hungary would not have discussed peacefully their age-old feud over Transylvania. Greece and Bulgaria would not have stood aside in the Yugoslavian civil war. Only in Yugoslavia, violence struck faster than the perspective of accession to the Union.

Moreover, what prevents us from being generous? The ratio of the average income of a Belgian to that of a Romanian is 8 against 1. Those who want to eradicate poverty in the world, first have to prove capable of doing so on their own continent. With a cocktail of cooperation, free trade and financial aid, the European Union has proved in the past to be able to ban poverty. Greece, Spain, Portugal and also Ireland all prospered after accession. From being emigration countries, they became immigration countries. And we found new outlets for our products. Why would that same process not repeat itself in Central and Eastern Europe?

Mr. Rector,

Enlargement is a fact. That leads to the question how we will bring in these new members without risking the Union to collapse. Enlargement must not lead to a paralysis or a watering-down of the European Union. How can the Union after enlargement continue to take decisions in an efficient, transparent and democratic way?

The Treaty of Nice has introduced the necessary institutional provisions to that effect. That is why ratification of this Treaty is indispensable and why the outcome of the second Irish referendum last month was a boost. But everyone feels that in Nice consensus was reached only about basic conditions, about the smallest common denominator, about the minimum minimorum. In Nice qualified majority and co-decision were not generalised. In Nice the Charter of fundamental rights was not inserted into the Treaty. In Nice the complicated pillar-structure was not abandoned. In other words, in Nice no new democratic and transparent institutional architecture was put into place. And in Nice no further step was taken towards greater coherence of the external action of the Union.

Precisely this awareness led Belgium, hardly one year later, to draft an ambitious Laeken Declaration about the future of the European Union. This declaration formulated a number of fundamental questions: how can the Union get connected again to its citizens? How should the Union adapt itself to enlargement? How should the Union position itself in a complex and multi-polar world?

Historians will appraise later the significance of the Laeken Declaration. Undisputed in any event is that it produced the Convention, which started its activities on 28 February 2002. The Convention has rapidly developed its own dynamics. It greatly accelerated the course of the institutional debate. In eight months time quite a number of taboos have been given up.

Almost exactly a year ago I was conferring in Downing Street with Tony Blair. I wanted to convince him to go along with an ambitious Laeken Declaration. I noticed then that the word “Constitution” formed an obstacle. Hardly a year later, the British representative in the Convention has himself submitted a proposal for a Constitutional Treaty.

We have to beware, of course, that we do not accept a nice looking box, which later appears to be empty. We should concentrate on to what will be the concrete contents of the Constitution.

Two weeks ago, the Chairman of the Convention, Valéry Giscard d’Estaing, has presented a preliminary Draft Constitutional Treaty. It definitely goes in the right direction. I am pleased with the proposal to include in a single Treaty text provisions of a constitutional character as well as provisions relating to the full range of policies and actions of the Union. Remains, of course, the question concerning the procedures of ratification. We must also be vigilant that what we call the acquis communautaire is not being undermined.

But thus far the Convention has produced other achievements. For instance, the insertion of the Charter of fundamental rights in the Treaty. I say insertion and not just a reference, which ultimately must lead to accession of the Union to the European Convention on Human Rights of the Council of Europe.

There is also consensus about the introduction of a single legal personality of the Union, which opens the way to the merger of the Treaties and the abolition or integration of the pillars.

Differing decision-making procedures will undoubtedly still be maintained for a while: the more intergovernmental procedure for the foreign and defence policy, yet the extension of the Community method to all other policy fields of the Union, that is including all aspects of police and judicial cooperation as well as visa, asylum and migration policy. The full communautarisation of all policy fields of the Union must in any event remain our ultimate goal.

Besides, there exists within the Convention a large degree of consensus about a clear, yet not too rigid, division of powers between the Union and the Member States, about the rationalisation of the number of instruments as well as about the introduction of a hierarchy of norms.

All of this may well sound quite dull. However, this tough struggle for clear structures for the Union is absolutely necessary if we are to make Europe understandable again for its citizens. In June of last year, in Göttweig (Austria) I have enumerated all legal instruments of the Union. To do so, I asked the assistance of a judge of the Court of Justice in Luxembourg. And we came – to everyone’s consternation – to the finding that there exists no less than thirty different kinds of legal rules in the Union. My proposal with the Laeken Declaration was to come to just three instruments: laws, framework laws, and executive regulations.

Moreover, this is the only way to obtain that what can be settled in Brno and Krakow will not be dealt with in Brussels.

Excellencies,

Ladies and Gentlemen,

The Convention tackles the issues head on. The Heads of State or Government will not be in a position to simply discard its conclusions. They start realising this. It is no accident that the new German Government has designated Joschka Fischer to sit in the Convention.

Belgium finds itself in a unique position in the Convention with up to eight participants among whom a vice-chairman.  Besides, our country counts three observers in its ranks. Our Convention members deliver good work. Their joint paper on the tasks, powers and instruments of the Union is perceived in the Convention as setting the tone of the debate. Now it matters to continue to be fully involved in the workings of the Convention.

The main items of discussion which will be on the agenda during the coming months are clear: economic and social governance of the Union, the role of national parliaments and the control of subsidiarity, external action of the European Union and the institutional architecture.

Let me begin with the coordination of economic and social policy. Economic and monetary union rests on the policy of the European Central Bank and on the economic and budgetary policies of the various Member States, which are coordinated through special mechanisms. This seems to me most fragile.

I think we should extend the common policy of the Union to the clear objectives of economic growth and employment, social progress and sustainable development, that is the structural reforms and objectives, which we have adopted in our strategy of Lisbon.

And what about the Eurozone? In the near future in a Union of 25 Member States, only 12 or at most 15 countries will belong to this zone. Too many to make only loose arrangements, yet too few to involve the Union as a whole. It is therefore of vital importance that these countries, acting as a group, can take decisions concerning economic, social and monetary policy within the Eurozone. This could be achieved through recognition of the existence in its own right of the Eurogroup inside the Council. But since the Eurozone de facto already constitutes a case of enhanced cooperation, why would we not formalise this by making use of the simplified procedures existing since Nice? On the basis of such enhanced cooperation we will be able to conduct a coherent economic and social policy both within the Eurozone and within the European Union.

Ladies and Gentlemen,

A second important item that will dominate discussions within the Convention during the coming months relates to the role of national parliaments and the control of subsidiarity. Let me immediately be very clear: I am not in favour of creating new institutions. The Union has enough institutions. We must make these institutions work more efficiently. We may not make the institutional architecture still more complex. A Congress of the Peoples of Europe, as included in the preliminary Draft Constitutional Treaty, appears superfluous to me. I fear that its establishment will unsettle the balance between the existing institutions as well as lead ultimately to the renationalisation of Community policies. The task of national parliaments consists in the control of national governments, not in forming obstacles to European political decision-making.

Rather than establishing a Congress of the Peoples of Europe, I am in favour of granting a permanent role to the Convention when it comes to taking new fundamental steps in European integration or to amending the essential provisions of the European Constitution. Indeed, in the Convention, European Parliament, national parliaments, national governments as well as the Commission are being involved.

As to the role of national parliaments in the European construction, they have in the first place to scrutinise more thoroughly the stances taken by the members of their national government in the various European Councils of Ministers. They will also receive a greater role in relation to European framework legislation that, in the future, will fix general objectives only.

Should national parliaments also receive a specific role concerning the control of subsidiarity? In the Convention a proposal is circulating which aims at organising a control ex ante of subsidiarity in the form of an early warning mechanism available to national parliaments. If at least one third of the legislative chambers representing one third of the Member States are of the opinion that a Commission proposal breaches the principle of subsidiarity, the Commission must reconsider its proposal. The Commission would then decide autonomously whether it maintains, alters or withdraws its proposal. In this way, its right of initiative remains unaffected. It all amounts to the drawing of a yellow card, not a red one.

Personally I think one should not go so far as to grant to national parliaments, which ex ante drew a yellow card the right to bring ex post subsidiarity-related proceedings in the Court of Justice. That would put too heavy a brake on the right of initiative of the Commission. For me only Member States and regions with legislative powers should have standing ex post before the Court.

Ladies and Gentlemen,

When drafting a genuine Constitutional Treaty we should not only pay attention to what will be included in it but also to what risks not to find its way in it. I am thinking in particular of the need of communautarisation of police and judicial cooperation or else of the strengthening of the common foreign and security policy.

The latter will still for some time be characterised by an intergovernmental approach. But we must already now create the perspective of a gradual communautarisation of this policy. Thus, I am in favour of granting to one and the same person – who would wear a double hat – the responsibilities of both the High Representative for the Common Foreign and Security Policy and the Commissioner for External Relations. In other words, this person must also act as the Vice-President of the Commission. He or she will thus be part of, and work in, both the Council and the Commission and can rely on the resources of both.

Ladies and Gentlemen,

This brings me to a last series of considerations. Everybody knows that the current institutional structure is inadequate for a Union of 25 or more Member States. If we do not act now the Union risks after enlargement either to water down to a merely intergovernmental organisation or to get paralysed in its decision-making.

I am currently conducting a thorough debate on this essential point with the Benelux partners, with other member states and also some applicant countries. We are studying several options, which I would like to share with you tonight.

Let me fist make it absolutely clear that the European Union is a Community, that is a supranational institution. That is precisely what makes it so unique. The danger that it degenerates into a merely intergovernmental organisation is, however, not imaginary.

I sense this danger also in the preliminary Draft Constitutional Treaty. It transpires too much the philosophy of such an intergovernmental cooperation between Member States which sovereignly decide to conduct a common policy in certain areas. Our model is Community cooperation, which has as its starting point the Community method and shifts to the intergovernmental approach only when it appears that in some matters a common policy is not yet possible.

I am a passionate advocate of the Community method. It is this method, which constitutes the essential feature of our Union. It implies that we abandon the paralysing consensus rule and that we develop genuine Community institutions.

That does not, however, mean that the present Community method should not be reformed in a drastic way with a view to democratise it thoroughly. I can share up to some point the criticisms launched at the current European institutions but it is not because sometimes these institutions are rightly criticised that we should give them up. What we should do is democratise them, and generalise qualified majority and the right of co-decision.

What we should do, is strengthen their legitimacy by making the European Parliament elect the President of the Commission, an election that is thereafter to be confirmed by the European Council. To the same effect, we could grant to the European Parliament the right to evoke legislative matters when the Council remains inactive for too long a time in dealing with Commission proposals.

Ladies and Gentlemen,

In the context of this debate about the institutional architecture a discussion takes place these days both within and without the Convention about the presidency of the Council. Some have proposed to elect along with the President of the Commission a veritable President of the European Union. It concerns the symbolic question whom George Bush can phone when the world is at fire. A number of Heads of Government in the Union have proposed to elect, in addition to the President of the Commission, a President of the European Council from outside the membership of this body and this for a longer period of time.

As is often the case with symbolic questions, several problems are lurking. At first sight it sounds of course quite well: the President of Europe, the face of Europe, the only phone number for all non-European Heads of Government. But can one person express the consensus of Europe when Europe rather seldom reaches consensus on burning international issues? What matters is the message we bring and especially the coherence of the message we bring. Moreover, what should such a President do in the 360 days a year that the European Council is not sitting and that George Bush is not phoning? And would the American President really phone no longer to the Elysée, Downing Street or Berlin? Or the latter to the former? No, a presidentialisation of the European Union does not seem to me an appropriate option for Europe’s future institutional architecture.

On the other hand, it is also entirely clear to me that the rotating semi-annual presidency cannot simply be maintained in its current form. With 25 Member States that appears impossible. In an enlarged Union all continuity is disappearing. Giving up the rotation system does, however, not mean at all that we should surrender the equality of Member States. The equality between Member States is one of the founding principles of the Union. But there are other ways in which to safeguard that principle.

In a Union with a multitude of peoples and cultures, a presidential regime is anyway not adequate. But merely defending the status quo and being blind to the need to adapt thoroughly our institutions is not an option either. Like other member states propose, a minimal solution could be to maintain the current rotation system for the backbone of the Union : the European Council, the coordinating General Affairs Council and Coreper.

Personally, I nevertheless believe that we must go further. We must therefore be creative, daring to leave the traditional ways, as if it were to search for a new third way. A third way creating a clear, transparent and efficient structure. A structure that allows us during the coming years to systematically enlarge the Union without having to resort each time to ladders and scaffolding to support our European edifice.

To shape this third way we should not improvise. My proposal is to draw inspiration again from the basic principle of democracy voiced by Montesquieu, the spiritual father of the separation of powers. That principle is common to our systems. It is applied in every Member State of the Union where it constitutes the foundation of democratic decision-making. It thus matters to apply that principle also to the future architecture of the European Union, that is a clear separation between the legislative, executive and judicial powers.

For the judicial power, there is no problem. It is vested in the Court of Justice. On the contrary, the legislative and executive powers are at present neither clearly circumscribed nor clearly attributed.

The first question is then what in the Union is legislative and what is executive. I think that this distinction should ideally be based on the procedure of decision-making, in other words, on the way in which the act concerned comes into being. All decisions whose adoption involves the European Parliament through co-decision are legislative. All other measures are executive.

The second question relates to the attribution of both tasks. For legislative action, the Council and the European Parliament are jointly responsible. The Council represents the interests of the Member States, the European Parliament the Community, European interests.

The executive power is vested in the Commission acting alone or in combination with the Council. This is again a collaboration between a Community institution and an institution in which the Member States are represented.

Essential for the new architecture is that the executive power becomes a genuine executive power, a European Government as it were. An executive power with a clear centre of decision-making. An executive power that directs and streamlines the European project. In other words, an executive power which, even if there are two institutions involved, is coordinated and conducted from one nerve centre. And obviously, that nerve centre must be the Commission.

The logical consequence of this construction is that the Council, which today has a double function, will be split into legislative Councils and executive and coordinating Councils.

The second consequence is that whenever these Councils take executive measures, their meetings will be chaired by the Commission. This can be the President of the Commission for the coordinating General Affairs Council. For the Foreign and Defence Policy Council, this can be the Vice-President of the Commission, who executes with a double hat the duties of High Representative for the Common Foreign and Security Policy and of Commissioner for External Relations. And this can be the competent Commissioners for the other specialised Councils.

Further, if we want a streamlined and efficient executive, it seems appropriate to me to limit the number of Commissioners. It is essential that the Commission remains a collegiate body, within which the constitutional equality of all Member States remains guaranteed. But I fear that a Commission with 25, 27 or more members cannot possibly work efficiently.

I am not the first one to say this, nor am I the only one. This decision was already taken in Nice. Indeed, what does the Nice Treaty, which all Fifteen of us have ratified in the meantime, state? I quote: “When the Union consists of 27 Member States, the number of members of the Commission shall be less than the number of Member States. The members of the Commission shall be chosen according to a rotation system based on the principle of equality.” End quote.

Why then am I personally in favour of a limited Commission? Firstly, because such limitation cannot but strengthen the genuine Community character of this institution. And this limitation is the only right reply to tendencies to work inside the Commission with senior and junior Commissioners or with clusters or even with weighted voting.  Obviously, a limited Commission implies that a mechanism will be established which will guarantee equal rights for all Member States.

The choice that should be made in particular by the less big Member States is very clear. Do we stick to the principle of one Commissioner per Member State, by the way a purely intergovernmental principle? With the danger that such Commissioner receives sub alternate responsibilities only. Furthermore, with the risk that such Commissioner cannot participate in restricted meetings where the real decisions are taken. Or do we prefer the certainty to nominate regularly, for instance one time out of two, a Commissioner who is guaranteed to be entrusted with fully-fledged responsibilities?

Besides, the limitation of the size of the Commission has already been decided in Nice. The question is therefore not whether the size of the Commission will be limited but rather when and how. In my view it is appropriate to take this step now, in other words when drawing up the new institutional architecture for the Union. But I do think that we need a transitional regime for the new Member States. They attach great political importance to this and it also appears useful for pedagogical purposes.

Let me repeat that this is only a personal opinion. We are currently examining the implications of this proposal within the Benelux.

Ladies and Gentlemen,

As I said, the legislative activity is vested jointly in the European Parliament and the Council. A European Parliament that receives a generalised power of co-decision. A European Parliament that, by way of its right to evoke matters, has the final word  when the legislative Councils remain inactive for too long a time.

One could, of course, entrust the legislative power entirely to the European Parliament. But I fear that this will automatically lead to the suggestion of creating a second legislative chamber in which national parliaments are represented. Personally, I am absolutely not in favour of such a chamber, as I already said. The Council(s) should thus, jointly with the European Parliament, remain competent for legislative work. Their meetings must of course be public.

Legislative Councils, whose number should be limited, thus constitute the second chamber of the legislative power, besides the European Parliament. And, just in the same way as members of the European Parliament elect internally their own President, just in the same way as the members of that European Parliament appoint internally Presidents for the different parliamentary committees, it seems obvious to me that the members of each legislative Council should appoint a President from among their midst. Here again, without introducing a rotation system, a mechanism could be established guaranteeing equal rights for all Member States. And it goes without saying that when the person concerned leaves the Council because his or her national mandate has come to an end, that person must resign as President of the Council.

Finally, what about the European Council? I already said it, maintaining the current system with a semi-annual rotation is not a valid option. Neither is a presidential regime. Where is here the third way?

The role of the European Council is a strategic one. It has to set out the great lines. Either you consider this role as falling in line with the executive and coordination tasks within the Union. This is what Joschka Fischer does by proposing the “double hat” approach here as well. The duties of President of the Commission and President of the European Council would then be executed by one and the same person. This is an interesting idea, which we are examining for the moment within the Benelux.

Or you consider the strategic role of the European Council as a task, which is rather falling in line with the legislative activity, namely giving incentives to both the Commission and the legislative Councils. In such case, just like any legislative Council, the European Council will have to appoint a President from among its midst and again, like for the legislative Councils, a mechanism will have to guarantee equality among Member States.

A simple and transparent structure with a clear separation between the executive power directed by the Commission and a legislative power directed by the European Parliament and the Council, this is what it is all about. We do not have many choices. Either we lapse into a presidential system, which breaks the existing balance between the institutions. Or do we maintain a rotation system, which will prove to be unworkable in an enlarged Union. Or we apply Montesquieu also in the European Union, “the third way”, which seems to me the most appropriate way.

Mr. Rector,

Ladies and Gentlemen,

We are witnessing historical moments. If later on children will still be taught history at school by reference to important dates, the following milestones will undoubtedly be part of the compulsory contents of the course: 2002, introduction of the single currency; 2004, promulgation of the European Constitution; 2007, unification of the continent.

This is our decade, the time in which we live. We may not realise it, but we are advancing with great leaps.

Thank you.