We Must Cure Brussels of its Centralising Fever
by Lüder Gerken and Roman Herzog
Europe's World (Policy Journal)
The inappropriate centralisation of political power by the EU is one of the main reasons people mistrust it, argues former German President Roman Herzog. He and Lüder Gerken prescribe four curative measures to cure the ailment
People are increasingly ill-at-ease, and even downright sceptical about the European Union. One of the main reasons is that they cannot shake off the feeling of an ever-stronger and inappropriate centralisation of its competences. These are concerns that must be taken very seriously because they have not been simply dreamed up.
In the world of politics, of course, the reason for this centralisation is that politicians and civil servants at EU-level have striven for more influence. Also, Brussels is frequently used as a backdoor for introducing legislation that a national ministry fears would meet too much resistance at home. And then there is the phenomenon in which member states' representatives in the Council of Ministers frequently bundle together totally unrelated projects and forge alliances to make up a voting majority.
What can be done to halt this trend towards inappropriate centralisation? First, we need to draw up a list that stipulates the precise scope and limits of EU competences. The proposed constitutional treaty does not contain such a list, even though this was specifically demanded by some people during the constitutional negotiations of the European Convention.
What's more, the constitution would in many policymaking areas entail a changeover from unanimity in the Council of Ministers to majority voting. If implemented the constitutional treaty would thus even reinforce the EU's gradual process of centralisation, however inappropriate that often is, simply by making the European decision-making process more straightforward.
The idea of introducing the listing of competences to clearly differentiate between EU competences and those of the member states was rejected by the European Convention chiefly on the grounds that it would impair the "dynamic ability of the EU to develop". Yet that is exactly the point of such a list. And in any case a list of this kind can be amended whenever it would be appropriate to extend the EU's competences.
The so-called discontinuity principle must also be introduced at EU level. This would entail the automatic expiry of prospective legislation if it has not been adopted within a legislative period, so that the procedure has again to begin from scratch in the new legislative period. This is a matter of course in Germany, but not in the EU. EU bodies repeatedly have to deal with legislative initiatives that are 10 years old or more, but the proposed constitution nevertheless abstained from introducing the discontinuity principle into EU legislation.
EU member states need to be given the right through the European Council to withdraw competency for a particular area of policy from European level and restore it to the national level. This would clearly reduce the risk of structural contents of EU competences being developed in a way that is contrary to the preferences of most member states, and would in particular remove the risk of measures being taken by the EU that turn out in the end not to be covered by the competences that had been granted to it.
If this is even just a possibility, it is in the interests of both the Commission and the European Parliament to exercise, with reservation and without excess, the powers that have been granted to them to prevent any risk of their being withdrawn completely. Having said that, it is also true to say that for this threat to be a real one, the right to restore any of the EU's present competences to the national level has to be based on a majority vote rather than a unanimous one.
The draft constitutional treaty doesn't contain the possibility of restoring individual competences to national level as a way of breaking the centralisation trend. Instead, it counts on the same one-way street as before, which leaves the EU heading towards ever-greater centralisation.
The combination of these three institutional measures could successfully counteract the shift towards inappropriate forms of centralisation that originate from day-to-day politics in Europe. So far as most policies are concerned, the three measures would take over the function of "subsidiarity controller", which up to now has been the Council's job and which it was incapable of performing effectively, witness the developments of the last 15 years.
Quite apart from the political realities that have caused the sorts of inappropriate centralisation we have outlined here, there is a fourth cause that although very influential has been generally overlooked. This involves the legal practices of the European Court of Justice, whose verdicts on competence issues reveal a systematic tendency to decide in favour of the EU in this area whenever it can find any justification at all.
A good example would be the verdict handed down in November 2005, when the European Court of Justice declared null and void the possibility of concluding temporary employment contracts with older employees that had been contained in Germany's Hartz-I package as a core element of Chancellor Gerhard Schröder's labour market reforms. The German measures had been aimed at reducing long-term unemployment amongst older people, but in the face of amazed expert opinion, the European Court of Justice came up with the justification that the "prohibition of discrimination on account of age" is a "general principle of Community law".
Another example has been the January 2006 verdict on so-called E-101 certificates, documents that say an employee temporarily working in another EU country remains insured in the social security system of his home country, and is therefore exempt from paying social security contributions in the country of temporary residence. A major problem here is that social security fraudsters often advance incorrect information so as to obtain E-101 certificates abroad, and escape from having to pay social security contributions at home.
The European Court of Justice, however, has now categorically refused national courts any judicially viable means of checking whether an E-101 certificate could have been obtained by fraud. This prohibition means that German social security fraudsters, who have falsely claimed to have sent employees abroad, must be acquitted in any German court. With this verdict, the European Court of Justice has created the need to establish new European regulation in an area that actually belongs to the member states' core competences.
The increasing centralisation of powers in the EU through legal practice that is determined by the European Court of Justice is something that must be stopped. To do so would entail setting up an independent Court for Competence Issues that would operate in parallel to the European Court of Justice and deal solely with questions of distinguishing between competences that belong at European level and those that are properly at member state level.
To be independent, this Court for Competence Issues would have to be made up of members from the constitutional courts of the member states. This court should be able to judge not only the legal instruments and political measures of the Commission and the European Parliament but also the verdicts of the European Court of Justice.
It is not just EU bodies and its member governments that should have the right to sue, but national parliaments too. While the proposed constitutional treaty includes the possibility of national parliaments and the Committee of the Regions taking action following any alleged violation of the EU's subsidiarity principle, this right still risks vanishing into thin air because in addressing such action to the European Court of Justice as an EU institution, any corresponding verdict will probably interpret the competence regulations in favour of the EU whenever possible. That's why this independent court is so vital.
As it stands, the EU's constitutional treaty makes no provision for any of the four institutional measures proposed here. But in the now very likely event of a revision of the draft constitution, these are measures that should definitely be incorporated.