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What Future for the Community Method?

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What Future for the Community Method?
    “What future for the Community Method? ”   Amí de Búrca Word Count :  2,499  Introduction An institutional system created by the Treaty of Paris, the Community method has been the main method of decision-making in the European Union for decades. The present crisis however has thrown the „goodness‟ of its continued operation into question. The initial response to the “Great Recession” was not intervention through the Community method but instead consisted of “intergovernmental reflexes” –  Heads of States coming together and deciding on appropriate measures. Arguably the European Council is now the current agenda-setter for the Union. This has heightened debate on the structure of European institutions. Added to this is the issue of European integration –  Europe is continuing to expand. In July 2013, the EU-27 becomes EU-28 as Croatia is welcomed into the European Union. Is the Community method a hindrance or a help to EU enlargement? We are living in a period marked by an overall growth of intergovernmentalism. The alternative method exists as the single most menacing threat to the furthered existence of the Community method. This paper looks at the Community method –   its inception and „erosion‟ –  and the impact upon it by the Lisbon Treaty. It discusses the likely future of the Community method and the result such a future will have on the member states of the European Union. I The Community Method The aftermath of World War Two saw the emergence of the Council of Europe –  one of several organisations created to achieve European unity. Its purpose was to provide a framework for the protection of human rights and fundamental freedoms, values essential for a free and peaceful Europe. The key characteristic of the Council of Europe was that it was intergovernmental; it respected and protected the autonomy of the nation state. However it did not succeed. Its short-lived „success‟ as a single entity was attributed to the failure of its intergovernmental methods. A supranationalist-fuelled reaction ensued. For one man in particular, Jean Monnet, an intergovernmental system was insufficient. In order to provide sustained peace, it was necessary to have a supra-nationally regulated Europe. His ideas inspired the creation of the ECSC –  the European Coal and Steel Community. Speaking in 1950 at the Intergovernmental Conference, he urged delegates not to saddle the embryonic ECSC with the shortcomings of traditional intergovernmental  institutions. In 1951 the Treaty of Paris was signed by six nation states and this then established the European Coal and Steel Community. The Treaty of Rome in 1957 established the EEC and EURATOM. These Treaties created an independent legal order within the framework of an institutional system in order to achieve a common higher goal.   This legal order is known as the Community method. Resisted by some and lauded by others, it can be categorically described as „the instrument that broke through the existing strength of intergovernmentalism‟ 1 . There is a lack of clarity regar ding the definition of the „Community method‟. Various academics have devised their own interpretations. This absence of precise definition has been the cause of some confusion. In an attempt to rectify the issue, two members of the European Convention, Michel Barnier and António Vitorino, provided a definition of the Community Method  2 in the Commission‟s White Paper on European Governance. For the sake of simplicity, the author of this paper will adopt the same. The Community Method refers to the method of decision-making in the EU, in areas prescribed by the Lisbon Treaty. In its simplest form, the method is that by which the Commission initiates legislative acts and the Council and the Parliament –  by co-decision –  adopt these acts. The Commission initiates by presenting proposals for legislative acts to both the Council and the Parliament. Qualified majority voting is used in the Council during this procedure –  except in the case where an amendment of the Commission‟s proposal is desired. In those cases, t he Council votes by unanimity. As regards implementation, on the adoption of those proposed acts the Commission is granted powers to oversee their implementation across member states. Finally the European Court of  Justice enforces the rule of law and ensures that this European legislation is being implemented completely and correctly in all member states. 1 Devuyst, Y. (2008) ‘The European Union’s institutional bala ce after th e Treaty of Lisbon: “community method” and “democratic deficit” reassessed’. Georgetown Journal of International Law  , Vol.39(2). 2 Barnier, M. and Vitorino A., ‘Contribution to the European Convention on the Community Method’ CONV 231/02, CONTRIB 80. Brussels: Secretariat of the European Convention, 05.09.2002. 11p.  II The Commission and Issues of Transparency How efficient is the Community method as a method of decision-making? Is it truly transparent in its role as part of the European Project? It is argued by various academics that the Community method ensures transparency in decision-making. Supporters maintain that it is an open and efficient venture. Eileen Denza characterized the method as possessing “legislative speed, certainty and efficiency”  3 . She held further that “ the negotiating process of Council legislation is more transparent than that of intern ational treaties [because of] the Commission’s powers of proposal”. Dialogue between the Council and the Commission is fluid and continuous, and member states devote effort to sway the Commission towards adopting proposals beneficial to their own states. Conversely, there are several issues which must be taken into consideration. One such issue is the method of allocation of the College of Commissioners. The Commission is a nonelected, politically independent body, operating within poorly-specified accountability structures. 4  Power is delegated to independent bodies. Furthermore the modern notion of national sovereignty is incompatible with the whole ethos of the Community method. With qualified majority voting a minority becomes to EU law it never desired. III The Lisbon Treaty The Lisbon Treaty, signed by Heads of State or Government of the EU on December 13, 2007, provided some major changes to the institutional and decision-making landscape of the EU. Smulders and Eisele contend that Lisbon confirmed the role of the Community method  5 . Indeed under Lisbon, the Commission‟s role in the legislative process was upheld. It still possesses its monopoly: legislative acts may, in principle, only be adopted on the basis of a Commission proposal  . However the Treaty introduced several departures from this monopoly. Firstly, the Lisbon Treaty confirmed the co-decision procedure, which was introduced by the Treaty of Nice. In the co-decision procedure, the Council 3 Denza, E. (2002) The Intergovernmental Pillars of the European Union . Oxford: Oxford.   4 Dawson, M., (2011) ‘ Three Waves of New Governance in the European Union ’. European Law Review   , Volume 36 , Issue 2 , p. 208-226 . 5 Smulders, B. and Eisele, K. (2012) ‘Reflections on the Institutional Balance, the Community method and the Interplay between Jurisd ictions after Lisbon’ Research Paper in Law (College of Europe ) 4/2012.  conciliates with the Parliament and subsequently amends Commission proposals –  without the agreement of the Commission itself. Comprising a direct departure from the srcinal Community method, Lisbon provides that legislation on judicial cooperation in criminal matters an police cooperation may be proposed by either the Commission or by a quarter of the member states. The Citizens‟ Initiative –  another creation of Lisbon –   means that one million citizens who are “nationals of a significant number of member states” may invite the Commission to submit a propo sal for a legal act 6 . Lastly, under the Lisbon Treaty, the Commission lost its autonomous right to make foreign policy proposals for adoption by the Council. Several other significant changes were introduced by the Lisbon Treaty. The European Council became a formal institution and was granted permanent Presidency –  the effects of which will be discussed later. Furthermore the role of the European Parliament was enhanced –  no longer was it simply a consultative body but a co-legislator with the Council of Ministers. IV Tension between the Community Method and Intergovernmentalism From its inception, the supranational aspects of the Community method have come under attack. Charles de Gaulle, inaugurated as President of France in 1958, fiercely opposed the pursuit of supranational integration. Under the Single European Act 1986, the method enjoyed its most unhampered existence. This existence was to be short-lived however; in the subsequent Treaties, steady decline set in. Both national governments and European citizens began rebelling against the magnitude of power given to the Commission. In 1992, the Maastricht Treaty along with its three-pillar framework was signed into law. The foundation of the first pillar was the three European Communities, and it functioned on the basis of the traditional Community Method. In contrast, the remaining two pillars –  CFSP (Common Foreign and Security Policy) and JHA, justice and home affairs –  functioned according to more intergovernmental fashions, albeit being governed by the same institutions. In brief, the operation of the Community method was confined to one pillar. During this period intergovernmentalism flourished. Important policy and institutional developments were allocated to take place outside the framework of the classical Community method –   ad hoc structures 6  The Treaty on European Union  –  Art 11(4)
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