The Gazette 1974

Attention was drawn to the so-called "Omnibus"

clause of Article 235 which provides that—"If action

PV the Community should prove necessary to attain,

the course of the operation of the Common Market,

of the objectives of the Community and this Treaty

®as not provided the necessary powers, the Council

shall,

acting unanimously on a proposal from the

Commission, and after consulting the Assembly, take

appropriate measures."

As regards the European Company Statute, it was a

Erst thought that this proposal could be adopted by

tiieans of an international Convention. In 1970, how-

v t

r , the Commission decided to avail of the procedure

'aid down by Article 235, and it sent a draft regulation

[nbodying a European Company Statute to the Coun-

of Ministers. Upon receiving it, the Council, follow-

g the normal procedure provided for by the Treaty,

£nt the draft to the European Parliament, as well as to

he Economic and Social Committee.

A".

Regulations

made by the European Communities

e directly binding upon the citizens of the Member

States, as if they were Statutes of the National Parlia-

ment) it follows that these citizens can directly invoke

these Regulations before their national Courts.

Direc-

ves are essentially means of approximating the laws

the Member States; under Article 189, they are

finding as to the result to be achieved, upon each

Member State to which it is addressed, but shall leave

the national authorities the choice of form and

Methods.

The

Commission

is a Collegium of 13 independent

Politicians nominated by the Governments for 4 years;

here are 6,000 European Civil Servants working

nder them. These civil servants are completely inde-

j^ndent of their National Governments, and cannot

ke instructions from them. It is the European Com-

mission alone that has a right to make proposals to

he Council of Ministers, and none of the Govern-

ments of the Member States is entitled to do so.

in the Commission, apart from the specialist civil

Recants on Company Law, who form part of the Direc-

ate General of Internal Market, recourse is also

d to 6 Specialist Advisers on Company Law, who

eminent Professors and lawyers. The expert on the

•atute on European Companies was Professor Sanders

the Netherlands. In order to ensure harmonisation,

very exacting concrete comparison, article by article,

es place. Eventually a Report of from 150 to 200

ftF

r o d u c e d

; this

duly translated into all the

Rtcial languages of the Communities, and sent to the

Perts in the national Government ministries.

. The National Civil Servants are invited to present

ti.

niselves before the Commission as experts; here they

Rl speak in their own name, and they will not bind

• eir Governments. On an average, there is a meeting

h Brussels on a particular topic every 4 to 6 weeks;

special advisers are invited to these meetings, and

nish excellent collaboration. The comparative re-

• arch reports previously noted are sent officially to the

. Crested

European

Groups

of National Organisa-

for consultation. As soon as the complete material

been submitted to the Commission, its staff will

R a first proposal for a Directive. When com-

peted, the draft will be sent to the national experts,

o *vell as the European organisations. The draft will

i t

n be discussed at length, modified again, and finally,

.^ill be sent to the 13 Commissioners of the Com

sion for a political decision. If the Commissioners

not satisfied with the draft, they will issue detailed

instructions as to how the draft is to be completed.

Eventually, when the Commissioners approve of the

final draft of the proposal it will be sent on to the

Council.

At this stage, the Council sends it first for a pre-

liminary opinion to the

Economic and Social

Com-

mittee.

This is a body of 144 members, consisting of

representatives of the said partners and others (9

of these members are Irish). The opinion eventually

arrived at is naturally a compromise.

The

European Parliament

is also sent a copy of the

draft directive by the Council. This body consists of

198 members, of whom 10 are Irish. The members are

grouped according to parties (mainly Christian Demo-

crats, Socialists and Liberals), but at the moment they

are not directly elected by the people. All proposals

sent to the European Parliament are explained and

discussed in detail in the various committees. But it

must be noted that the Parliament has only an advisory

function, and cannot change the text of the proposals

submitted by the Commission; however their advisory

opinions do subsequently influence the Commission.

When the Commission receives the opinions of the

European Parliament, and of the Economic and Social

Committee, it reconsiders its initial proposal and even-

tually submits an amended proposal to the Council.

Then the debate on the subject starts before the Council

of Ministers; in this ca~e the experts sent by the

National Governments are not deemed independent,

but receive definite instructions from their Govern-

ments. As regards the Council of Ministers, it should

be noted that there is a total of 58 votes, and, if

decisions have to be taken by a

qualified

majority,

which is the normal majority, this will consist of a

minimum of 41 votes out of 58, and, as the 4 large

countries, each have 10 votes, they cannot be them-

selves outvote the smaller countries (Ireland is en-

titled to 3 votes). As previously stated, the Council

will fir t convoke the Government experts from the

Member States, but these experts hardly ever produce

unanimity. If the questions are still open and unresolved,»

then it is brought in the first instance before the Per-

manent Representatives of the Member States in

Brussels. If no definite agreement is reached, the pro-

posal is sent direct to the Council of Ministers. On all

these levels Commission officials participate at the

meetings within the Council. Absolute unanimity of all

the Council members is required, if it is to depart

in any way from the propo~als of the Commission.

Once a Regulation or a Directive become law, the

European Court of Justice in Luxembourg has the

final say in interpreting it.

A discussion then took place, to which

Mr. Temple

Lang

and

Mr. Timmermans

also contributed.

Senator

Mary Robinson

emphasised that, at these discussions,

there was an open and flexible approach, and that it

would be quite wrong to consider the Eurocrats as

Dictators. There is in fact a very wide preliminary con-

sultation as much in the Commission as in the Council.

In National Parliaments on the other hand, the legisla-

tion is prepared with the utmost secrecy, and is usually

finlly passed without much change. As regards intro-

duction of European Law by means of Conventions

Dr. Schwartz

emphasised the disadvantages of this

procedure. Conventions require unanimity, and have

subsequently to be ratified by the National Parliam-

ents. Up to now, only one Convention—that on the

Reciprocal Recognition of Judgments—has been rat-

ified and this Convention took 14 years—from 1959-

17.7