UNACCEPTABLE DEMOCRATIC DEFICIT: EUROPEAN PARLIAMENT ASSESSES 'MAASTRICHT'-COOPERATION IN THE FIELDS OF JUSTICE AND INTERNAL AFFAIRS
On 15 July the European Parliament (EP) adopted a "Resolution on cooperation in the field of justice and IMernal affairs under the Treaty on European Union". The resolution is based on the Robles Piquerreport of the EP's Committea on Civil Uberties and Internal Affairs (CCLIA), a sobering reminder of the EC's democratic deficit after Maastricht.
The disillusioned and sometimes caustic tone of the report speaks volumes about the EP's gwwing exasperation with secretive inter-governmental cooperation within the EC.
Beware of the "fifth power"
"Traditionally", says the report, "the field of international cooperation has been in the hands of diplomats and officials. This policy has been extended to intergovernmental cooperation at the European level. Here too, it is the principles of 19th-century diplomacy which still prevail: do your work discreetly, keep Members of Parliament and other busybodies at arm's length and inform the minister only when he has to take political responsibility. Treaties are almost always fails accomplis which the people's representatives can only approve (preferably tacitly) or reject, but cannot change. (...) It is noticeable how much senior oificials of Ministries of Justice and Internal Affairs... can behave like diplomats in the old style in intergovemmental contexts, i.e. they are able to build a position of power without the legitimacy they would have if they were politically accountable to elected bodies.'
"This is the core of the problem: intergovernmental cooperation by its very nature leads to positions of power for officials," the CCUA says and warns of 'the rise of this new power to what we could call the `fifth power' since the media have been dubbed the 'fourth power'. National bureaucracies are becoming too big and too complicated for ministers to keep an eye on everything, although they are deemed politically responsible for everything officials do or fail to do. The real nature of the political responsibility of Ministers of Justice and Interior thus degenerates: They are preoccupied with their respect'rve national problems and have little time to devote to international problems. of which they have only a superficial knowledge and which they only too often delegate to their staff. who have none of the political responsibility. Frequently, when a minister does attend meetings, he is briefed in the plane on the way to the conference. It goes without saying that, as a consequence, his responsibilityforthe decisions taken is much more theoretical than practical".
The plethora of "intergovernmental working parties" dealing with European cooperation in the fields of justice and internal affairs (e.g. TREVI, Ad Hoc Group on Immigration, Group of Coordinators on Freedom of Movement. Schengen Group) all have intergovernmental character (i.e. they are not part ofthe formal EC framework), and are largely dominated by senior officials, the report notes. While many of the groups are theoretically consultative bodies, in practice they strongly influence policy-shaping and decisionmaking. Yet. the legitimacy of the procedure they follow and the documents they produce (agreements, decisions, resolutions, recommendations, conclusions, etc.) is usually dubious. "At all events, their [the agreements'1 legal nature is not given the desirable clarity in the documents themselves. They are moreover usually untidy and frequently inconsistent" and. 'as a rule. the documents concerned do not have to be ratified by national parliaments". as for the Eurooean Parliament. '[it] has only been formally informed of decisions taken by the Immigration Ministers in very recent times. Information on the activities of other intergovernmental bodies, ifi it is set down on pacer (TREVI sometimes publishes a press release in one language... 1, has to be gathered by national MPs and their European colleagues themselves".
"There would not really be a problem if tecnnical matters alone were concerned. But in the case of. for instance, measures to compensate for the abolition of checks on people crossing frontiers between Community States, society as a whole is concerned as is each individual citizen directly. In these cases the lack of democratic supervision is unacceptable."
Maastricht: a few bright spots, many black spots
Under the rubric "General assessment: a few bright spots, many black spots' the CCUA examines the effects ofthe MaastrichtTreaty on European Union with regard to democratic decision making in the field of justice and internal affairs.
The Treaty of Maastricht, the report concedes, "can be seen as a step in the right direction inasfar as this cooperation is now going to be carried out in an institutional context, that of the European Union (Article C) and is partly to be put into effect via the structures and bodies of the European Community itself or via bodies associated with the Community. Here the European Community is lending its staff, institutions and even its budget to the Union, without this implying any transfer of powers to that Community. However ambiguous the whole thing may seem. it is better than the present patchwork of intergovernmental groups and activities without any link with the Community. It will now no longer be possible to conduct matters... without associating the Commission, the Council and COREPER [Committee of Permanent Representatives] with the work or without informing the European Parliament and asking for fts opinion. `Maastricht' elevates European cooperation in the field of justice and internal affairs to a certain level of integration although it is not that of the Community".
The CCUA notes dryly that "[this] is about all the good that can be said of this text [the Maastricht Treaty]".
Indeed, after these somewhat comparatively lenient introductory remarks, the CCUA continues by virtually dismembering what it somewhat disdainfully calls "this text".
"There is and remains a large distance between the executive and supervisory power, i.e. a big democratic deficit", the report stresses.
Due to the wholly intergovernmental nature of the whole area it is, formally, the national parliaments which exercise supervision. Yet these parliaments can only call their own government representatives to account. They have no direct influence on the collective element of the decision-making process.
As for the EP. it will not receive any genuine powers except those connected with the application of Article 100c. Apart from this, Maastricht. in the view of the CCUA, does not offer much more than "a kind of right to be informed" and "some cosmetic concessions". And the report angrily remarics that "a clause such as that which instructs the presicency to ensure that the views of the European parliament are `duly taken into consideration' is almost moving in its naivety. How is a recommendation of this kind possible, without anyone having the power to enforce it? How does something as non-binding as this get into a treaty?"
A legal vacuum
In the framework of intergovernmental cooperation the power of jurisdiction formally lies with the national courts, although they have no responsibilities outside their own national area ofjurisdiction. "What guarantees are there of a unifying judicial supervision of the interpretation and application of decisions and regulations which are created outside the Community framework once they are considered legal or have become Iaw in some way or other?", the CCLIA wonders, and claims that as tong as this question is not answered satisfactorily, "there will be a legal vacuum which will only make itself felt once divergent and even conflicting interpretations and applications of intergovernmental rules in the Member States arise". In short, all this will lead to "insufficient legal protection for the citizen", the report concludes and retails the EP's numerous and vain attempts to obtain "communitarisation" of European cooperation in the fields of justice and internal affiairs.
Stand back or face the facts?
Having assessed this sombre picture, the CCLIA names two possible reactions: "the European Parliament could stand back cynically, distance itself from the (Maastricht) Treaty provisions and wait for a better, Community-minded, climate, but it can also decide to create its own role in the structure of the Union with regard to European cooperation in the field of justice and internal affairs".
The CCLIA is in favour of the latter course. Among otherthings it has made concrete recommendations on the procedural organisation of contacts between the presidency of the Council and the parliament and advocates making full use of such provisions of the Treaty as the right of inquiry, the Ombudsman, and the right of the Parliament, acting by a majority, to request the Commission to submit appropriate proposals with regard to affairs requiring Community acts for the implementation of the Union Treaty.
Furthermore, the CCLIA attaches great importance to improving contact and consultation between the EP and national parliaments and, specifically, the appropriate committees of those parliaments. The main idea behind this proposal is that "the European Parliament is naturally nearerto the Brussels information sources and could help the national parliaments by passing useful information on them. The national parliaments, on the other hand, receive information via their government representatives which could be of benefd or interest to the European Parliament".
The CCLIA further advocates the extension of the jurisdiction of the European Court by concluding a separate international agreement declaring the Court responsible of jurisdiction (in accordance to Article 177, EEC Treaty) regarding intergovernmental cooperation in the field of justice and internal affairs.
As for the chronic lack of openness and public accountability of intergovernmental cooperation, the report stresses, that apart from strengthening the powers of the EP, a "secondary way" of removing the "democratic deficit" would be "openness of administration regulated by lavw'. In this context, the report makes mention of the Maastricht declarations on access to information, openness and transparency and of the Swedish accession negotiations. The CCLIA points out to Sweden's age-old tradition of openness of administration guaranteed by its constitution (see FECL. No.l5, p.6, p.7).
A legally binding obligation, along Swedish lines, to publish certain Community documents and a right to information for individual citizens" is the "only way in which the matter of openness of European administration will get off the ground at all at Community level". And the CCLIA underlines that "[the) publication of documents can help to limit the position of power of EC bodies made up of senior officials who have a vital role in the process of preparing and executing Community policy. T h e discrepancy between their de facto power and their public accountability could be corrected by the publication of documents. This would create better legal protection for the citizen (there would after all be a public debate on draft decisions prior to their finalisation) and also greater opportunities for scrutiny both by the European parliament and by national parliaments".
The CCLIA sees the setting up of a convention (under Article K.3(2(c)?) as a possible means to make documents concerning European cooperation in the field of justice and internal affairs availableto the public.
Weak institutional structures: a threat to democracy and openness
In its final considerations the CCLIA expresses a serious warning: '?he danger of weak institutional stnrctures is that in practice they stop functioning once their weakness comes to light. Decision-making processes would then again circumvent any proper structure to the detriment of democracy and openness..."
The report concludes with a modest sign of hope: "It may however be expected that time will operate in favour of communitarisation, as the Member States and their parliaments become increasingly convinced of its necessity, faced as they will be by the increasingly Community dimension of certain problems that affect all citizens of the Union, and above all once the Single Act and the Maastricht Treaty are applied in their entirety".
Source: European Parliament: Report of the Committee on Civil Liberties an Internal Affairs on cooperation in the field of justice and internal affairs under the Treaty on European Union (Title VI and other provisions) and Resolution, Rapp: Carlos Robles Piquer. 19 p., 1 July 1993, A3-0215/93.