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Unlocking the potential of the EU Treaties An article-by-article analysis of the scope for action STUDY EPRS | European Parliamentary Research Service Author: Étienne Bassot Members’ Research Service PE 630.353 – January 2019 EN Unlocking the potential of the EU Treaties An article-by-article analysis of the scope for action Public opinion often expresses the view that the European Union should do more to improve the lives of citizens in various policy areas, but a lack of convergence among Member States on the desired changes, not to mention likely hurdles in the ratification process, as well as other factors make any significant reform of the EU Treaties unlikely in the near term. This study identifies and analyses 34 policy areas where there may be the potential to do more under the existing legal bases provided by the Treaties without recourse to any amendment or updating of those texts. It looks at currently unused or under-used legal bases in the Treaties with a view to their contributing more effectively to the EU policy process. EPRS | European Parliamentary Research Service AUTHOR(S) This paper has been drawn up by the Members’ Research Service of the Directorate-General for Parliamentary Research Services (EPRS) of the Secretariat of the European Parliament. Its preparation has been coordinated by Rafał Mańko. A number of policy analysts within the Members' Research Service have each drafted sections of this paper. They are: Nikolai Atanassov, Denise Chircop, Carmen-Cristina Cîrlig, Alessandro D’Alfonso, María Diaz Crego, Roderick Harte, Beatrix Immenkamp, Cemal Karakas, Ivana Katsarova, Silvia Kotanidis, Tania Laţici, Elena Lazarou, Tambiama Madiega, Rafał Mańko, Nóra Milotay, Shara Monteleone, Laura Puccio, Anja Radjenović, Gianluca Sgueo, François Théron, Sofija Voronova, Agnieszka Widuto, and Alex Benjamin Wilson. To contact the authors, please email: [email protected] LINGUISTIC VERSIONS Original: EN Translations: DE, FR Manuscript completed in December 2018. DISCLAIMER AND COPYRIGHT This document is prepared for, and addressed to, the Members and staff of the European Parliament as background material to assist them in their parliamentary work. The content of the document is the sole responsibility of its author(s) and any opinions expressed herein should not be taken to represent an official position of the Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. Brussels © European Union, 2019. PE 630.353 ISBN: 978-92-846-4404-9 DOI:10.2861/45233 QA-07-18-117-EN-N [email protected] http://www.eprs.ep.parl.union.eu (intranet) http://www.europarl.europa.eu/thinktank (internet) http://epthinktank.eu (blog) Unlocking the potential of the EU Treaties Executive summary The Treaty of Lisbon is the current legal foundation for the work of the European Union and its institutions. Although there is at present no general debate within the institutions on the revision of the Treaties, senior EU politicians have recently hinted at the possibility of expanding Parliament's powers. However, given that the ordinary procedure for revision of the Treaties is cumbersome and lengthy, and that the simplified procedure cannot be used to broaden EU competences, it makes sense to explore possibilities for unlocking the full potential of the existing Treaties as they stand now. Characteristically, European citizens are less concerned about how precisely the EU institutions operate, than whether the Union is capable of delivering on specific policy issues of importance to them, such as consumer protection, free movement of citizens, irregular migration and combatting transnational crime and terrorism. Even in matters which lie at the heart of state sovereignty as traditionally conceived – such as the broad domain of the Area of Freedom, Security and Justice – large proportions of EU citizens call for more EU action. The expectations of the European public therefore represent an important guideline for the European institutions, and delivering upon such expectations, within the Treaty framework, contributes to enhancing the EU's democratic legitimacy. In this vein, the present study explores the possibilities for unlocking the full potential of the legal bases already available to the Union, with a view to better delivering on citizens' expectations. The European Union is a community of law, and therefore any action or measure undertaken by the Union institutions – whether legislative or non-legislative – no matter how much it is needed or how much citizens demand it, must have a solid legal basis in the Treaties. This is in line with the well- established principle of legality, which is a key component of the ‘rule of law’ principle. In the EU context of multilevel governance, the principle of legality is connected with the principle of conferral, meaning that the EU enjoys only such competences as have been explicitly conferred upon it by the Member States in the Treaties. Therefore, the EU co-legislators – the European Parliament and the Council of the EU – are bound by the will of the Member States, expressed in the Treaties, laying down the precise fields of potential EU legislative activity. Such rules are referred to, especially when it comes to enacting EU legislation, as legal bases. For the purposes of this paper, EPRS policy analysts have identified and analysed those legal bases which can be described as either unused or under-used. However, it must be remembered that the Treaties should not be read independent of their changing context. A 'static interpretation', sticking to the 'original' intent of the drafters, would quickly find itself out of touch with the changed context, both within the EU and in the wider world. The Treaties, including the legal bases for EU action, should therefore be interpreted dynamically, in order for the EU to be able to address new challenges. The study is based on both legal analysis of the relevant Treaty articles and on policy analysis focused on current challenges, and how they could be addressed through more EU action. Obviously, it is up to policy-makers to decide which legal basis should be used to further action and what kind of EU action is needed. Our intention has been to demonstrate that there are still unused or under-used possibilities for the EU institutions to deliver even more in terms of citizens' expectations and meeting current challenges. The outcome of the project, in the form of a systematic overview of the 34 under-used, or even unused, legal bases should be seen as a kind of toolbox for political decision-makers. The possible forms of EU action that have been identified might take, not only the most obvious one of legislation (i.e. adoption of directives or regulations), but also improving procedural mechanisms (e.g. moving beyond unanimity and unlocking the ordinary legislative procedure), enforcing delivery of legislation which already exists but the potential of which remains to be fully tapped, enhancing complementary administrative capacity at EU level (e.g. a European Anti-Fraud Corps), and finally, increasing financing in a given policy area. I EPRS | Europe an Parliamentary Research Service Table of contents Introduction __________________________________________________________________ 1 The Treaties - The legal framework for EU activity ______________________________________________ 1 Potential to be unlocked _________________________________________________________________ 1 Delivering on the expectations of EU citizens ______________________________________ 2 Citizens' expectations ____________________________________________________________________ 2 Some examples of recent delivery on citizens' expectations _____________________________________ 2 Under-used and unused legal bases within the Treaties _____________________________ 5 Unused legal bases ______________________________________________________________________ 5 Under-used legal bases __________________________________________________________________ 5 Different possible forms of EU action – Not only legislation __________________________ 5 Legislative measures _____________________________________________________________________ 5 Enforcing delivery _______________________________________________________________________ 6 Complementary administrative capacity _____________________________________________________ 7 Increasing financing _____________________________________________________________________ 7 Overview table of measures the EU could take, making use of unused or under-used legal bases ________________________________________________________________________ 9 Analysis of 34 specific unused or under-used legal bases ___________________________ 15 1 Boosting national support for EU external action __________________________________________ 16 2 Ensuring efficient decision-making in foreign policy _______________________________________ 18 3 Strengthening the Parliament’s role in CFSP ______________________________________________ 20 4 Improving data protection in foreign affairs ______________________________________________ 22 5 Establishing an EU army? _____________________________________________________________ 24 6 Clearer process for financing civilian EU missions __________________________________________ 26 7 Simplifying the funding of EU military operations _________________________________________ 28 8 Facilitating customs cooperation ______________________________________________________
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