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© Europeum – May 2002 
1
 
 
 
CZECH VIEWS OF THE DIVISION OF COMPETENCIES IN THE ENLARGED EU 
 
POLICY PAPER -  EUROPEAN POLICY FORUM – EUROPEUM 
MAY 2002 
 
 
Division of competencies – part of the EU Basic Treaty 
 
The authors of this paper draw on the assumption that the European Union will not be a 
federation - at least not in a short-term horizon - but an entity sui generis, i.e. of its own 
kind. Its functioning will be governed by the Basic Treaty on the European Union. The new 
consolidated EU treaty shall  unite all the three existing European Communities as well as the 
three pillars of the EU. It shall create a sole entity – the European Union - with a clearly 
articulated legal personality in international as well as internal affairs.  
The Basic Treaty, deriving from the current treaty framework, shall cover the following 
domains: 
 
1. Definition of EU citizenship with a catalogue of rights arising thereof. This document 
shall resemble the Charter of Fundamental Rights of the EU or be ideally based on the 
Charter itself, as declared by the EU Member States at the European Council in Nice. 
2. EU catalogue of competencies, i.e. vertical delimitation of powers between the EU and 
EU Member States. 
3. Horizontal delimitation of powers, i.e. among the individual EU institutions and bodies, 
including what kind of regulation they can issue and by what procedures.  
4. Mechanisms for amendments of the Basic Treaty 
5. Other provisions. This could include individual sectoral policies or specific actions. They 
can be provided for, however, in a separate protocol dealing with implementation issues. 
This scenario is supported by the authors of this paper – as oulined in point D of this 
paper. 
 
Vertical delimitation of powers 
 
The vertical division of competencies between the EU and Member States will be set forth at 
three levels: 
 
a) domains within an exclusive competence of the EU. It is necessary to bear in mind that in 
these areas the subsidiarity principle will not be applicable as the EU Member States 
will transfer all the decision-making powers to the Union level, except areas subject to re-
nationalisationby EU Basic Treaty amendments. The actual list of domains where the EU 
  
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will have exclusive competencies is subject to intensive discussions (for example the 
proposal of Mr Lamassour, MEP) and are not dealt with by this paper in order to keep it 
brief.. The authors would like to refer to analysis that has been already undertaken in this 
field, namely the study of T. Fischer and N. Schley: “Organising a Federal Structure of 
Europe: An EU Catalogue of Competencies”. This study is based on a detailed cost-
benefit analysis of management of each policy at the level of the EU, Member States or 
lower entities (regions, municipalities). Further, this topic will be subject to intensive 
discussions in the course of the forthcoming IGC in 2004. The authors assume that the 
EU-managed policies should include at least common trade policy (including common 
external tariff), common monetary policy (with respect to special position of countries 
outside the EMU), internal market regulation, common visa, asylum and immigration 
policy including the Schengen acquis, co-ordination of instruments of police and 
judicial co-operation in criminal matters. 
 
b) Domains of shared competencies between the EU and Member States. This is a key 
area where the subsidiarity principle will apply. It must be defined clearly, including the 
sanctions in case of its violation. These mechanisms could include: 
 
• preliminary control of adherence to the subsidiarity principle by the political bodies of the 
Member States (national parliaments) or EU bodies (Upper chamber of the European 
Parliament, further refer to point C.) 
• subsequent control of EU legal rules, in concrete terms the possibility of invalidation of 
such an act by the ECJ for the violation of the subsidiarity principle where the right of 
initiating this procedure would be vested even with the Member States (e.g. national 
parliaments, national governments) 
 
In connection with this, it is necessary to develop a new mechanism of application of the so-
called supplementary powers of the European Union, at present defined in Article 308 of the 
EC Treaty. This provision seems rather obsolete – it was used mainly before the adoption of 
the Single European Act and the adoption of the internal market. The redefinition of this 
article would justify the use of supplementary EU powers only in exceptional cases. In 
case the EU institutions intend to make use of this article/principle, it should be subject to a 
particular authorisation procedure, e.g. an unanimous assent of the European Council upon 
request of the European Commission. 
 
c) Domain of exclusive competencies of EU Member States. This delimitation seems 
necessary for the purpose of conciliating the public at large and eurosceptic groups in the 
individual Member States. Further it concerns  preventing fears of “ever-penetration” of 
European integration into areas deemed as strongholds of national sovereignty. It is 
necessary to identify these domains in the Basic Treaty. These could include e.g. the 
constitutional systems of the EU Member States, regulation of official languages in 
the Member States and other nation-state related matters, the systems of public 
administration, education, health care, social security etc. The subsidiarity principle 
does not apply here either as it is the Member States who determine themselves at what 
level it is most efficient to take individual regulation. 
 
This delimitation, however, does not exclude, de lege ferenda, the transfer of individual 
competencies from one group to another. This could be done in two ways: 
• by amending the EU Basic Treaty in compliance with mechanism envisaged therein 
  
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• by means of closer co-operation with a view of higher effectiveness in a particular field 
(e.g. co-ordination of educational programmes at EU level). Obviously, this transfer of 
competencies will be possible only “upwards”, i.e. from a lower level to a higher level 
(shared or union) and only when complying with strictly foreseen conditions for the 
adoption of closer co-operation which are not dealt with in this paper but which should 
definitely form a part of EU Basic Treaty. 
 
An idea that the authors would like to propose here is also that part of the vertical delimitation 
of powers should also be a formalisation of Commission communications. These although 
being non-binding, rather internal instruments, have a substantial impact on the behaviour of 
both member states as well as other entities (corporations, individuals). It would be worth 
considering introducing a certain “inhibitor” of the Commission in this respect, e.g. by means 
of a political control of the Commission (from the European Parliament – further point C.) 
 
 
 
Horizontal delimitation of competencies 
 
This is a key area where it might turn out to be difficult to reach a consensus. The opinions 
concerning the division of powers among the EU bodies differ significantly – the 
discrepancies in speeches of some key policy-makers (Joschka Fischer, Jacques Chirac, Tony 
Blair, Lionel Jospin) as well as numerous political scientists might serve as an example. The 
last modifications are provided for in the Treaty of Nice. 
 
The authors hold the viewpoint that it is necessary to clarify the structure and relations 
between the EU institutions so that they resemble more to the traditional division of 
powers and in this way they become more readable for EU citizens. That includes for 
example a visible separation of legislature, executive and judiciary. 
 
Legislative pillar of the EU: 
 
Represented by a two-chamber Parliament. 
The lower chamber would be constituted on basis of the current European Parliament.  
This chamber should be elected on basis of a unified election system. The best solution 
seems to be a two-round majority system so that the interests of the regions would be 
represented at the European level. This would, however, bring in a certain risk that not all 
regions would be represented equally (taking into account certain asymmetry between the 
mandates of bigger and smaller Member States). The role of the lower chamber will be 
enforced especially by introducing the co-decision procedure to all EU legislation (except 
for delegated legislation by the Commission) which would bring the idea of European 
Parliament closer to the notion of a classical legislative body. 
The current state of affairs seems unjustifiable, i.,e. when the European Parliament has the 
right to give its  assent to the accession of new Member States but not to the amendments of 
the founding treaties. (see further point D.) 
The right to dissolve the lower chamber should be  based either on its own ruling or on the 
basis of an unanimous decision of the European Council (in the Basic Treaty it is possible 
to further stipulate under what circumstances this could happen). 
 
  
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Bigger problems can be expected to emerge with the concept of the composition of the Upper 
Chamber of the European Parliament. The authors incline towards the proposal of German 
Chancellor Gerhard Schröder, i.e. in favour of the transformation of the current Council of 
Ministers into an Upper Chamber. In this way, the former body would cease to exist and it 
would totally transform to the legislative body. Hence the interests of the individual 
Member States would be represented in the Upper Chamber. 
The Upper Chamber should be a permanent body, however, the delegation of the 
representatives would be the matter of national states/governments. An optimal way seems to 
be the creation of a function of “European minister” in the individual EU Member States 
representing the respective country in the Upper Chamber. This person would would change 
according to a current political situation. The expertise which restswith the Council would be 
maintained by advisors for the individual policy areas, possibly also aided by a stronger focus 
on individual policy areas at the level of the Committee of Permanent Representatives 
(COREPER).  
 
In the Upper Chamber, a present system of weighted voting, possibly unanimity, should be 
maintained, with a view of protection of smaller EU Member States. The question of precise 
determination of these procedures will be a matter either of the Basic Treaty, or possibly 
another protocol (resembling an implementing treaty) subject to a simplified amendment 
procedure. 
 
Executive: 
 
The European Commission will remain the executive body at the EU level. The 
functioning of the Commission will depend on the vote of confidence by the Lower 
Chamber of the European Parliament. This is however, not possible to ensure legally, it is a 
matter of habit. A particular position within the Commission will be represented – apart from 
the President – by the Commissioner for External Relations who as the sole representative 
would represent the EU in the external affairs. This would mean that the present post of High 
Representative will not exist any more. The Commissioner for External Relations could be – 
as well as the President – appointed directly by the European Council.  
According to the authors, the Commission does not necessarily have to be the only 
institution with the exclusive right to initiate EU legislation. This power could be vested 
both in the Lower and the Upper Chambers on basis of a certain quorum. The Commission 
would, however, have the chance to issue opinions in respect to such proposals. If negative, 
the quorums in both Chambers would be even stricter (absolute majority in the Lower 
Chamber, unanimity in the Upper Chamber). The initiative of legislation could be vested even 
in the Member States according to their constitutional provisions (which could set forth e.g. 
the admissibility of the proposals of governments, national parliaments or possibly other 
bodies).  
 
Collective Head of the EU: 
 
The European Council would be maintained, however, the presidency would be cease to 
exist in its present form and the President of the European Council would become 
President of the Commission in one person. The European Council will appoint the 
President as well as the Commissioner for External Relations. The President will then appoint 
the individual Commissioners and the whole college would be subject to a vote of confidence 
by the Lower Chamber of the EP. 
  
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The European Council would de facto fulfil the role of a collective head of the EU, suggesting 
the Commission´s strategy and giving her political guidelines. Based on this presumption, the 
European Council should meet more frequently, about once in a month in Brussels as 
stipulated by the Treaty of Nice. 
 
Judiciary: 
 
The judicial power at the EU level would be represented by the European Court of 
Justice, with the same catalogue of competencies as nowadays. In connection with the 
vertical delimitation of powers highlighted in point B, one of the foremost tasks of ECJ will 
be that of the guardian of subsidiarity principle, with the power to proclaim those EU acts 
contrary to this principle null and void. It will function in parallel as a “constitutional court”, 
guarding the adherence to the division of competencies between EU bodies and between the 
EU and Member States.  
The only substantial change that the authors would suggest here is the right of active 
legitimation for the national parliaments in the invalidation procedure before the ECJ. 
This power is de facto vested with the national parliaments even now. Its application is, 
however, slightly complicated because it is the Member States (not expressly national 
parliaments) who can initiate such proceedings and further there is quite a limited two-month 
period for the initiation of this lawsuit. 
 
 
Procedure of Amending the Basic Treaty 
 
Even though it  is not explicitly stated in the core of this paper, the authors draw from the 
presumption that the Basic Treaty will de facto be the EU constitution. For this reason, the 
procedures prescribed for its amendments should be strict. That leads further to a question 
what should be the areas included in the Treaty, in other words, what would be “rigid” 
provisions and where on the other hand more flexibility for amendments would be desirable. 
The amendments to the Basic Treaty should be agreed upon unanimously by the European 
Council. The Convention method should become a standard procedure for adopting the 
proposals, including as wide a range of subjects involved as possible (national parliaments, 
governments, EU bodies, expert public, NGOs). The assent procedure should definitely 
include the approval of the amendment by the Lower Chamber of the EP as well as 
ratification in the individual Member States in compliance with their respective 
constitutional provisions. 
 
Prague, May 11, 2002 
 
The paper has been elaborated by the working group of European Policy Forum, Europeum, 
composed of: 
Lukáš Pachta 
David Král 
Ivo Šlosarčík 
Radomír Špok 
David Stulík 
Pavel Černoch 
 
Refer to the bottom of the documents for contacts. 
 
  
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© Europeum – May 2002 
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Czech views of the division of competencies in the enlarged EU

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