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Speeches, Interviews

18.04.2006

European Conference on Subsidiarity, Keynote Speech by Franz Fischler


"Subsidiarity and poportionality - the responsibility of the European institutions"

 

Mr. President, Mr. President of the European Council, Mme. President of the European Council, Presidents of the various parliaments, Ladies and Gentlemen.

As I see it, it already would be an infringement against subsidiarity, but in any case it would certainly not be proportional if in front of all you I would start by first trying to define the two concepts we are talking about. I just want to thank you for being  invited to this very important conference.

If nowadays we are talking about subsidiarity and proportionality and if these concepts are being discussed then normally people come up with severe criticism. They complain that subsidiarity is not really respected, that the EU is interfering with everything, that because of coming up with more and more rules it goes well beyond the target and it fights small things with heavy armoury. Then, we hear that Brussel’s bureaucracy is far from real, that it develops practices that cannot really be implemented and that it is trying to fight against small crime when it should really fight against big crime. But, whenever the European Union is needed, namely when it is a question of combating unemployment or finding effective means against neo-liberalism or when we are trying to protect the environment, there we don’t see that Europe acts at all. In addition to that this ping-pong of pushing around responsibilities between the European level and the national level continues despite the fact that it has become rather boring already, and that game is being played especially in areas where there is a shared responsibility such as in the area of implementing the Lisbon Strategy. Sometimes, we also feel that those who are responsible for the European Union have resignated already. Especially they have the impression that in the last analysis the national implementation won’t work anyway, where people say that the pleasant decisions are taken at national level and the rest is transferred to Brussels.

But, of course I don’t want to lament here, quite on the contrary. I want to give you some ideas according to which, as I see, the European institutions could be contributing towards more proportionality and more subsidiarity. We all know that the Constitution - especially when implementing these two principles - would help us and we would make a lot more progress with the Constitution, but I think we could still do a lot even without the Constitution. If, of course, the political will to do so exists. Where can we say on the basis of the responsibilities of the European institutions that things can be improved? I think there are four areas where we can start to act, and starting to act means that we have to look both towards the future and to the past. Looking towards the future in order to make sure that when new initiatives are taken, these initiatives are taken only in areas where this European added value can really be created and become useful, and looking towards the past, in maybe trying to correct mistakes that we made in that very past. The first level therefore is the constitutional law as such. For the future we should say that any further changes in treaties should be proposed only by conventions. We have made very positive experience with this instrument. It is more democratic than previous government conferences and the setup of the convention in which representatives of all institutions as well as the national governments and parliaments work together, means that both subsidiarity and proportionality would be respected from the outset. In addition to that, by ratifying what we come up with there is a sort of emergency break for the national parliaments which prevents a careless treatment of the  principles under consideration from the outset. The question of course remains whether the present treaties, as we have them, are really in line with the principle of subsidiarity in all points and whether the intensity of regulation that we have established in these various rules and treaties is always proportional.

We never really looked at the treaties systematically from that point of view and in the final report of the Convention it was stated that Part III of the draft Constitution couldn’t really be assessed from that point of view because there wasn’t enough time. Things can only starting happening there when we have these various bridges that we want to create. But, then it becomes important to inform the national parliaments in good time. It might be quite a good task to look at this and when intensifying inter-parliamentary cooperation, to first look at those articles or look for those articles which would not be in line with the principles that we are discussing today.

I also see no good reason, why - even without the Constitution entering into force - the European Constitution couldn’t implement those elements of the draft Constitution for which we wouldn’t necessarily need a new legal basis. And if you do this with some good will, than you will find that there are quite a lot of them. The Commission has, in any way, to try and find out whether it has a legal basis for its legislative action. The same is true of the European Parliament and of the Council. If this is included into the preamble or into the protocols of the various texts that would already improve the situation quite considerably. Also, I see no reason why in addition to the Fiche Financière we shouldn’t have a Fiche Subsidiare as well for each draft law in which we state where the European added value of this initiative is to be found and why it is absolutely essential in the rules and regulations that we have already to add yet another one and to become active in this area and with the scope that we want to give to this initiative.

As far as the consultation process prior to introducing a legislative proposal is concerned, I think the role of the Parliament has been extended in the last couple of years already and I don’t think that anything more needs to be done here. With one exemption, namely that the parliaments, and I am talking now about the national parliaments, should be consulted in a much more systematic way and they should not be put on the same level as NGOs. But that is something which can be implemented quite easily. Sending drafts directly to the parliamentarians not via the governments is something else which now that we have the internet can be solved without any problem at all. It’s more a question of theory. It becomes a little bit more difficult when talking about the wish that all languages should be available right a-priori and from the beginning. Here the national parliaments will have to decide what they want. Would they rather have these proposals as early as possible and therefore to accept that certain languages will only follow later on, or would they rather wait for all translations to be available. As I see what is important is that enough time is available for statements. The period should start from the time when all languages are made available to everybody.

That brings me to a rather difficult point: what are we going to do with the statements and the opinions of the national parliaments? I could for example imagine that the Commission would decide on a procedure which says that we follow the procedures which we had in the draft Constitution, namely that the Commission would agree to review its proposal if within six weeks more than one third of national parliaments see an infringement against the subsidiarity principle in this new draft. But, in order to give the Commission the possibility to revise its proposal – and to change it – Parliament and Council would when discussing the Commission proposal wait long enough so that the time limit given for statements and opinions has really lapsed completely. And given the present circumstances what we do not have is a law, is a possibility to appeal to the European Court of Justice. There the possibility might be that the European Council could invite the European Court of Justice within the framework of normal ECJ proceedings to look at the two principles with sufficient attention. But, from experience it is only later during the legislative procedure, namely once the Commission’s proposal goes through the Council and through the Parliament, difficulties with subsidiarity might arise. That is why these two institutions of the European Union would have to comply with same duties and would always have to commit themselves to implement the two principles in the same way as the Commission itself. But, maybe the three institutions together would find it easier to make sure that in the spirit of cooperation they could give the relevant room to subsidiarity and proportionality, if we had an inter-institutional agreement, for example, which enshrines this in such an agreement.

Then, there are two elements which I would like to mention: first of all the way in which directives are sometimes implemented in national law in various member states and if the critics are right that means that within this part of the procedures it is quite possible that in some member states there can be an abandonment of the principles of proportionality as well. The second problem relates with the view to the past, there the Vice-President of the Commission Günter Verheugen already started a very positive initiative to try and deal with the past. He is now looking at modern 1000 legal rules and regulations and he wants to assess their need and also their time limits. That is a way in which ex-post you can still make sure that the two principles of subsidiarity and proportionality are really complied with.

That brings me to some ideas on the way in which European law could be used and could be implemented. There again it is neither the administration of the Commission nor the administrations of the member states that have always been in line with the principle. Sometimes the principle of proportionality and sometimes the way in which subsidiarity was really used have not really been in line with what we should do and there I think we have to see not only at national but also at regional level how this can be improved. But, since I am supposed to concentrate on the European institutions and how they comply with the two principles, I just like to make a short reference to this problem. It is obvious that both in the regional and in the rural development policy for example, despite the fact that we have different proposals in the various EU texts, that some of these measures, even in states that have a federal structure, are implemented by the various federal authorities and not by the regions. But, let me go back to the European institutions and in this specific case to the Commission. There again I think it would be very useful for the Commission to look at the various Commission practices and to see whether in these practices the two principles are really complied with in each case. Isn’t it very often the case that citizens find that they are faced by yet another extremely complicated form, that they complain that instead of the economy, what is increasing is the bureaucracy. It is not common sense, it is not the way in which things should be improved, it is not the content that people look at it, it is just bureaucratic rules that are supposed to be complied with.

Therefore it is necessary for the European and the national administrations to cooperate in a very intensive way and that starts by something which I think would be very useful, namely when we regroup staff, we should look at the practical experience of that staff. If we have sufficient national experts working in the Commission in the future as well, that would be a good thing. For example, quite a number of European civil servants should have national experience as civil servants before working for the European Union.

In my field of work it has been very useful that conferences are being held on a regular basis with the national decision-markers and the people who are responsible at national level in order to have an exchange of views and experiences on how various European rules and regulations work in practice. From time to time it is also useful to have an assessment and an evaluation of how these laws work so that in practice you can then adjust these laws and make them work better.

But, that already shows you how much can and should be done also in the area of cooperation between the national parliaments and the European Parliament. As I see it one could even think about the possibility of first of all discussing this, of course, and agree that at the same time the European Parliament requires an evaluation from the Commission and the national parliaments could at the same time require such an evaluation from the national authorities. That would mean that you wouldn’t only see how useful a legal rule is, but you could also see how it is implemented in the various states and you could do that in a uniform way.

Mr. President, just allow my one more minute. I would like to touch on a subject which I think is very important in this context as well. Because, if you really look at the political reality of the European Union as a whole and if you want to review the reasonable application of the subsidiarity principle, you cannot only look at the executive and the legislator, you have to go one step further. Because especially the big problems that we are trying to deal with, namely to come to grips with unemployment, to bring together the knowledge-based economy, to develop the European social model further, to make sure that we live up to our responsibility vis-à-vis the environment and for many other areas the same is true. You cannot do this just by laws and regulations.

So, it’s neither Europe, nor the national state, nor the regional area that can do this on its own. I think it would be really very, very bad for policy and the way in which policy is seen by the citizen if in addition to that we were to say because of subsidiarity the responsibilities are handed on from one level to the next and back again. And that is exactly were we have to start with this new governance, a new in which we cooperate, a new way in which we really include all the relevant forces, new ways of assessing political success and failure and a new way of communicating our policies to the citizens. It’s not possible here to go into all this in great detail and that is not the aim of our conference. But, I think our conference wouldn’t really reach far enough if we were not to look at this new governance as well. I also see a new central task here for the Commission. If best practices are to have an ever increasing importance, there has to be somebody first of all who looks at the various practices, who assesses them, who does a stop taking and evaluates them. Unless this is done in a systematic way and on a very objective basis, I think, trying to come up with the best possible practices is something that will never be unbiased, quite on the contrary, it will be biased and it will not lead to others seeing this as a way according to which they should act but really only as a way in which they can fight again.

Then, there is another thing which is very important, namely including the social partners and the NGOs in the political process. This inclusion should not only go for the possibility of making their opinions clear in the Economic and Social Committee, It is rather a question of really including them and having them cooperating in political processes and projects outside legislation. We discussed this at great length already but no consequences have really been drawn as far. Well, ladies and gentlemen, I hope that with these few ideas I was able to show that there’s absolutely no reason to just wait and see and to use the excuse that we don’t know what’s going to happen to the European Constitution after all. I am convinced that exactly the opposite is true. If, as far as subsidiarity and proportionality are concerned we really do manage to make progress then, I think, that will be a very central contribution to make sure that many prejudices against the Constitution and the European Union as a whole will be removed and the practical policy will become much more clear and efficient in our cooperation of the various levels in Europe. Initiatives for more subsidiarity and more proportionality can of course also improve the cooperation between the various European institutions and can make it easier to come up with this new governance that we want. I don’t want to go quite so far as to say that if we had more subsidiarity and more proportionality that alone would create a more positive attitude towards  the European Union. But, at least some antipathies could be reduced.

 

Date: 19.04.2006