Intergovernmental conferences are major events in the history of the EU.
The Single European Act (SEA) of 1986 and the Maastricht Treaty of 1992, two
epochal episodes in the constitutional development of the EU, were preceded by
intensive intergovernmental conferences. The Nice Treaty of 2001, a revision of
the EU’s founding treaties, emerged from an equally exhaustive conference, but
was a severe disappointment. Lacking a big idea such as the single market
program at the time of the SEA, or Economic and Monetary Union (EMU) at the time
of
Under pressure after the Nice debacle to avoid business as usual, EU
leaders decided in December 2001 to precede the next intergovernmental
conference with the Convention, consisting of representatives of national and EU
institutions, buttressed by a forum through which ordinary Europeans could
provide some input. The Convention therefore represented a democratization of
the treaty reform process. Although not a decision-making body, the Convention
had considerable moral and political suasion.
From the outset, the Convention aimed for a new constitutional treaty,
not simple a revision of the existing treaties. While not tantamount to
proclaiming a new state, let alone a super-state, the adoption of a
constitutional treaty would represent an important development in the political
and institutional history of the EU. By emphasizing features that are
constitutional and traditionally state-like in nature, the new treaty would take
the EU closer to the goal of European political union.
This chapter examines the constitutional character of the EU, with
particular focus on the Convention and its outcome. These are best understood in
the context of the EU’s constitutional development since the launch of the
first European Community, in the early 1950s. The first part of the chapter
therefore reviews institutional adaptation and reform over the course of the
last fifty years. The second part outlines how the EU became, by the early
2000s, a constitutional entity of a unique kind, a quasi-federation of sovereign
states with a constitutional charter but not a formal constitution. The third
part examines the decision to hold the Convention and draft a constitutional
treaty, and the fourth assesses the conduct of the Convention itself. The
chapter concludes with a reflection on the nature of the reconstituted EU.
What began in the early 1950s as a putative common
market for coal and steel changed over the years into the EU, a polity with an
ever-wider policy reach and an ever-larger membership. During that time, the
EU’s institutional architecture remained remarkably stable. The Coal and Steel
Community’s institutions consisted of a Council representing national
governments, a High Authority representing the common interest, an Assembly
representing ‘the peoples’ of the member states, and a supranational Court
to ensure the rule of law. The new Communities, and later the EU, adopted the
same basic arrangement. The only major changes were the addition in the 1970s of
the Court of Auditors, with responsibility for financial accounting, and the
European Council, a forum for regular meetings of the heads of state and
government and the Commission president. The Court of Auditors was the result of
a formal treaty change; the European Council of an informal political agreement.
The
Commission
The Commission’s role and influence changed over
time, depending on political circumstances, national and Commission leadership,
and prevailing integration projects. Flush with the success of the common
market’s smooth implementation, Walter Hallstein, the Commission’s first
president, overreached in the mid-1960s when he tried to link a new financial
agreement for the Common Agricultural Policy with an extension of the Commission
and the European Parliament’s budgetary powers. French President Charles de
Gaulle reacted by withdrawing French representation from the Council, and
linking that, in turn, to a demand for limits on the use of qualified majority
voting. In the aftermath of the so-called ‘empty chair crisis,’ the
Commission retreated politically in the face of more assertive national
interests.
The Commission regained its political prominence in the mid-1980s under
the leadership of Jacques Delors, its most successful president. Like
Hallstein’s, Delors’s presidency coincided with the launch of a major
initiative for deeper economic integration, this time, completion of the single
market. Also like Hallstein, Delors sought to build political union on the back
of successful economic integration. Unlike Hallstein, however, Delors had the
support of the powerful French and German leaders. Delors and the Commission
rode the wave of the single market program and became prime movers in the quest
for EMU.
The Commission’s remarkable success contained the seeds of its
political downfall. Jealous of its increasing assertiveness, national
governments clipped the Commission’s wings. An unelected and inherently
unpopular institution, the Commission suffered grievously from the public
backlash against the Maastricht Treaty. The Commission’s political influence
waned well before Delors left office in 1995. The Commission’s enforced
resignation four years later caused further damage. So did growing criticism of
the Commission’s record of policy implementation.
The Rome Treaty gave the Commission two important legislative and
executive prerogatives: the exclusive right to initiate legislation and the
authority to implement EC policy. Based on its claim of impartiality and
continuity, the Commission successfully defended its right of legislative
initiative in successive intergovernmental conferences. Yet in the Maastricht
Treaty, national governments gave the Commission only a shared right of
initiative in the politically-sensitive Common Foreign and Security Policy (CFSP),
a new area of EU activity, and severely limited the Commission’s legislative
role in the other new and equally sensitive area of Justice and Home Affairs (JHA).
National governments later gave the Commission a prominent legislative role in
immigration and asylum policymaking, one part of the JHA portfolio, but kept the
Commission at arm’s length from judicial and police cooperation, the other
part of it.
The Commission fared less well in its defense of executive authority.
Soon after the launch of the EC, national governments established an elaborate
committee structure (so-called ‘comitology’) to oversee the Commission’s
implementation of EU policy. The SEA legitimized the Council’s right to
encroach on the Commission’s executive powers, and the Commission failed in
successive intergovernmental conferences to regain its original authority.
Critics of the Commission’s record of policy implementation are often unaware
of the curbs on Commission autonomy imposed by comitology, although criticism of
the Commission’s managerial performance is generally warranted.
Regardless of the Commission’s role and responsibilities, the
Commission’s composition remained largely unchanged over time. Only in 2000,
at the end of the intergovernmental conference that resulted in the Nice Treaty,
did EU leaders agree to scrap the old formula whereby big member states
appointed two commissioners each and small member states appointed one each. As
part of a deal that redistributed Council votes in their favor, the big member
states agreed to appoint only one commissioner each, with the size of the
Commission being limited to twenty-five members, beginning in 2005. The
Convention presented an ideal opportunity to devise a new formula for appointing
the Commission thereafter when, as a result of continuing enlargement, there
would be fewer commissioners than member states, while at the same time
strengthening the Commission’s legitimacy, thereby indirectly enhancing its
authority.
The
European Parliament
The Parliament of the original Communities consisted
of delegates of national parliaments charged with drawing up proposals for
direct elections, which the Council was to adopt unanimously and the member
states to enact in accordance with their constitutional requirements.
Disagreements among member states delayed the holding of the first direct
elections until 1979. When they eventually took place, direct elections enhanced
the profile and legitimacy of the European Parliament (EP), but not its
popularity (the turnout was low and declined in successive five-yearly
elections). By virtue of being directly elected, the Parliament staked a claim
to greater political power. Earlier, in 1970, a number of sympathetic member
states insisted on granting the EP budgetary power as part of the landmark
agreement on the EC’s ‘own resources’ (monies that accrued directly to the
EC’s coffers).
The original treaties provided for parliamentary involvement in
legislative decision-making only through the consultation procedure. The EP
could submit an opinion on a legislative proposal, which the Council generally
ignored. In an effort to assert its authority at the time of the first direct
elections, the EP challenged the validity of a Council directive on the grounds
that the Council had acted before receiving the EP’s opinion. The Court
supported the EP and struck down the directive, proclaiming that the
consultation procedure ‘reflects at Community level the fundamental principle
that the peoples should take part in the exercise of power through the
intermediary of an elected assembly’ (Corbett 2001, pp. 119-120).
The Court’s ruling emboldened the EP to argue that it was best placed
among the EU’s institutions to close the democratic deficit, a term first used
in the 1970s to describe the apparent gap between the governed and the governing
in the EC. The EP therefore demanded a greater role in legislative
decision-making. Thanks again to the support of sympathetic member states,
Parliament initially won the right, in the SEA, to a second reading of draft
legislation under the ‘cooperation’ procedure.
The
EP won another dramatic extension of its legislative role in the Maastricht
Treaty. Under the ‘codecision’ procedure, the EP acquired legislative
authority equal to that of the Council, in certain policy areas. Subsequent
treaty amendments tightened-up the codecision procedure in the EP’s favor and
extended its use to new policy areas. As its legislative
powers increased, the EP sought a corresponding role in implementing EU policy
through the comitology system. Giving Parliament a role in the murky area of
comitology would help to eradicate another source of the democratic deficit.
Having progressively increased its formal authority, the EP dramatically demonstrated its political coming of age by forcing
the Commission’s resignation in 1999 over allegations of corruption in the
executive body. The EP always had the right to sack the Commission. Only when
the Commission was weakened in the post-Maastricht period did the EP feel strong
enough to flex its muscles. In the event, the Commission jumped before being
pushed. Combined with the EP’s recent practice of vetting the Commission
president-designate and the other Commission appointees, the resignation crisis
greatly strengthened the EP’s oversight role.
The
Council, Qualified Majority Voting, and National Parliaments
The treaties allocated votes among member states, for
decision-making in the Council, roughly accordingly to population size. A
threshold of about 72 per cent of the total votes constituted a qualified
majority, making it relatively easy for member states on the opposing side to
form a blocking minority. With each enlargement, small member states became more
numerous in the EC, and later the EU. The big member states, concerned about the
relative erosion of their voting power as many more small countries joined,
insisted during the intergovernmental conference of 2000 on a redistribution of
votes in their favor.
The question of voting weights was academic for much of the EC’s
history as ministers rarely voted in the Council. De Gaulle’s challenge to the
use of qualified majority voting in 1965-1966 ended with the Luxembourg
Compromise, a political agreement to refrain from voting when a government
claimed that ‘very important interests’
were at stake. The Luxembourg Compromise legitimized the use of the veto
and stymied decision making until member states agreed, in the SEA, to use
qualified majority voting to enact most of the measures listed in the single
market program. Even though decisions were often made ‘in the shadow of the
vote,’ without votes actually being cast, the revival of qualified majority
voting invigorated the EU.
The greater use of qualified majority voting had the unintended
consequence of further marginalizing national parliaments in the EU system. As
long as governments could cast a veto in Brussels, national parliaments could
hold them accountable for allowing passage of legislation that national
parliaments opposed. Once governments could be outvoted in the Council, however,
national parliaments could hardly hold them to account for being on the losing
side. The extension of the EP’s legislative powers compensated at the European
level for the loss of parliamentary power at the national level, but that was
little consolation for either national parliaments or national electorates, who
turned out in low number for elections to the EP. Hence the protocol attached to
the Amsterdam Treaty on strengthening the role of national parliaments in the EU
political system.
The
European Council
The greater scope and increasing domestic impact of
European integration caused the heads of state and government to become more
deeply involved in EU affairs. The European Council therefore became the key
decision-making body for issues ranging from enlargement, to treaty reform, to
multi-annual budget packages. The European Council also found itself striving
for political agreement on contentious legislative proposals that became
deadlocked in the Council of Ministers. Despite being outside the EU’s formal
institutional structure, the European Council quickly moved to the center of the
EU system. The emergence of the European Council as the EU’s ultimate
political arbiter was a key constitutive development in the history of European
integration, which the Convention was bound to take into account.
The European Coal and Steel Community was an
organization with ambitious political as well as economic objectives. Despite
its humble name and pressing purpose, the organization sought ‘to create
…..the basis for a broader and deeper community among peoples long divided by
bloody conflicts …. [and] to lay the foundations for institutions which will
give direction to a destiny henceforward shared.’ [Paris Treaty, Preamble]
From the outset, therefore, the European project was no ordinary undertaking.
Notwithstanding the disappointment of many Euro-enthusiasts and indifference of
most Europeans, the Coal and Steel Community was a singular political entity,
far different from other international organizations proliferating at the time.
(Haas, 1958) The failure of the European Defense Community in 1954, and with it
a proposal for a far-reaching European Political Community, refocused European
integration on functional economic means and limited political ends. Hence the
launch later in the 1950s of the European Atomic Energy Community and the
broader-based EEC, popularly known as the European Community (EC).
The EC reconstituted the European project in a number of important ways.
First, its members affirmed in the preamble of the Rome Treaty their
determination ‘to lay the foundations for an ever closer union among the
peoples of
Two key developments in the 1960s shaped the emerging EC. One, mentioned
earlier, was the Luxembourg Compromise, a political agreement that enshrined the
national veto in Council decision making. The other was the elaboration by the
European Court of the legal principles on
which Community law rests: direct effect and supremacy. In its first landmark
ruling, in 1963, the Court declared that, because ‘the Community
constitutes a new legal order of international law for the benefit of which the
[member] states have limited their sovereign rights,’ the treaty ‘produces
direct effects and creates individual rights that national courts must
protect.’ A year later the Court ruled
that, as member states had definitively transferred sovereign rights to the
Community, national law could not overrule EC law without the legal basis of the
Community itself being called into question. The new legal order survived the
skepticism of national governments and, thanks to the complicity of national
courts seeking preliminary rulings in cases involving Community law, became
firmly entrenched over time. (Stein, 1981) Reviewing the nature of the EC
in 1991, the Court observed that the Rome Treaty, ‘albeit concluded in the
form of an international agreement, nonetheless constitutes the constitutional
charter of a Community based on the rue of law ….the Community treaties
established a new legal order for the benefit of which the States have limited
their sovereign rights, in ever wide fields, and the subjects of which comprise
not only Member States but also their nationals.’ (Piris, 1999, p. 561)
Beginning in 1973, successive rounds of enlargement radically
reconstituted the EC. Having begun with six member states, the EC grew to twelve
by the time of the SEA. Three more countries joined in 1995, and the twelve
newly independent countries in Central and Eastern Europe submitted membership
applications at about the same time. Turkey, Cyprus, and Malta also applied to
join. Enlargement changed the character of the EU by bringing into it many more
small countries, diversifying member states’ policy priorities and
institutional preferences, increasing economic and regional disparities, and
introducing a strong streak of Euroskeptism. Far from retreating in the face of
such challenges, the member states intensified integration despite, and
sometimes because of, enlargement. The EC made its first forays into EMU and
foreign policy cooperation in the early 1970s, partly in anticipation of the
impact of enlargement.
Following an intergovernmental conference in 1970, the EC acquired its
own financial resources. Even when
augmented later by direct contributions from the member states, the EU budget
remained small, amounting to only a fraction of the combined budgets of the
member states. The EC never had the right to raise taxes. On the expenditure
side, the EU did not have responsibility for big-ticket items like social
welfare and defense. For much of its existence, it allocated most of the budget
to agricultural subsidies and price supports. The development of cohesion policy
in the late 1980s introduced a second large item of expenditure. Nevertheless
the EU never acquired a federal budget commensurate with its economic and
political weight.
From
the Single European Act to the Nice Treaty
The SEA was the first of two major treaty changes
that transformed the EC and launched the EU. Article 1 of the SEA declared that
the European Communities and European Political Cooperation (cooperation on
foreign policy) aimed ‘to contribute together to making concrete progress
towards European unity.’ Of greater practical importance for the EC’s
constitutional development, the SEA included a number of policy and
institutional innovations.
Maastricht was the second major treaty change. Building on the momentum
generated by the success of the single market program and uncertainty
surrounding the end of the Cold War, the Maastricht Treaty, with its provisions
for EMU, foreign and security policy, and cooperation on JHA, marked a major
step toward political union. Aware of its importance and potential public
impact, national governments included measures to bring the EU closer to the
people. Constitutionally significant in their own right, these ranged from
increasing the legislative power of the EP, to enshrining the principle of
subsidiarity (whereby member states would act at the EU level only when
warranted by the scale and effects of the proposed action), to establishing a
Committee of the Regions, to proclaiming the EU’s respect for human rights
(the Court had long since established that human rights formed an integral part
of the European project).
Despite these ameliorating measures, the treaty triggered a strong public
reaction. The Danish electorate’s initial rejection of it in June 1992
epitomized widespread concern about the scope and methods of European
integration. For Weiler, a leading scholar of EU law, ‘the public reaction,
frequently and deliciously hostile ….. [was] the most important constitutional
‘moment’ in the history of the European construct. For four decades European
politicians were spoiled by a political class which was mostly supportive and by
a population which was conveniently indifferent. That ‘moment’ has had a
transformative impact: public opinion in all Member States is no longer willing
to accept the orthodoxies of European integration, in particular the seemingly
overriding political imperative which demanded acceptance, come what may, of the
dynamics of European evolution.’ (Weiler, 1999, p. 4)
The democratic deficit, which the Maastricht crisis brought to the fore,
continues to overshadow the EU. Although, by any standard, the EU is reasonably
representative and accountable (Moravcsik, 2002), there is widespread public
disenchantment with its institutions and policies. Whether warranted or not,
many Europeans feel that the EU intrudes, as a British minister once said, into
the ‘nooks and crannies’ of everyday life; that EMU costs jobs and stunts
growth; that the Commission is unaccountable; and that direct elections for the
EP are a waste of time. Ireland’s initial rejection of the Nice Treaty, in the
June 2001 referendum, demonstrated the extent of public alienation from the EU.
The Irish government’s response—holding another referendum and threatening
that a second no vote would plunge the EU into crisis—reinforced the
impression that national governments would do anything to engineer a referendum
result to suit their interests.
Although intended primarily to strengthen the EU’s foreign and security
policymaking capacity, the Amsterdam Treaty of 1997—a revision of the Rome and
Maastricht treaties—included important constitutional provisions. Member
states declared in the treaty that the EU ‘is founded upon the principles of
liberty, democracy, respect for human rights and fundamental freedoms, and the
rule of law’ (Article 6). With a view to the eventual accession of the newly
independent countries of Central and Eastern Europe, member states made EU
membership conditional on respect for those principles. In order to ensure
continued adherence to them once a country joined the EU, the treaty included a
provision (Article 7) whereby the Council could suspend a member state’s
rights in the event of a ‘serious and persistent breach’ of the principles
outlined in Article 6.
Growing interest in the human, political, and social rights of EU
citizens, together with pressure from Germany for the explicit
constitutionalization of the EU, culminated in the convening of a convention and
the adoption by the European Council in December 2000 of the Charter of
Fundamental Rights. At the same time, the European Council concluded the
intergovernmental conference that produced the Nice Treaty. Like Amsterdam
before it, Nice amended the Rome and Maastricht treaties (the founding treaties
of the EU). Unlike Amsterdam and other treaty reforms, Nice dealt almost
exclusively with institutional issues such as the size and composition of the
Commission and the weighting of votes in the Council. Although timely,
especially in view of enlargement, the institutional changes agreed to in Nice
were patently inadequate to facilitate effective decision-making in an enlarging
EU.
Commenting on the Amsterdam Treaty, Moravcsik and
Nicolaïdis observed prophetically that the EU ‘stands before a series of
ongoing constitutional debates. The focus in the future will be on the
construction of a legitimate constitutional order for policy-making responsive
to the desires of national governments and their citizens.’ (Moravcsik and
Nicolaïdis, 1998) The Charter of Fundamental Rights was an important part of
the emerging constitutional order, but the Nice Treaty failed to address key
constitutional questions, including the legal status of the Charter. At a time
when momentum in the EU was building for constitutional clarity and reform in
order to address mounting concerns about the democratic deficit and the
institutional impact of enlargement, the Nice Treaty was a damp squib.
Dissatisfied with the narrowness of the pre-Nice intergovernmental conference,
German Foreign Minister Joschka Fischer launched what came to be called the
post-Nice debate on the future of the EU—fully six months before the European
Council concluded the Nice Treaty.
Fischer’s famous speech in May 2000, calling for an EU with more
federal features, triggered a host of contributions by other leading European
politicians on the EU’s future shape and character. Public and political
reaction against the Nice Treaty emphasized the need for far-reaching
constitutional reform. The unprecedented nature of impending enlargement, which
the existing member states could no longer ignore, called for an imaginative
political response. Under pressure from the Länder (states) in the German
federation, which resented the alleged encroachment of the EU into their areas
of competence (constitutional authority), German Chancellor Gerhard Schröder
suggested attaching to the Nice Treaty a protocol for yet another
intergovernmental conference on treaty reform, in 2004.
The outcome of the 2000 intergovernmental conference gave few grounds for
optimism that another conference would produce better results. The EU was in a
dilemma: the treaties could be reformed only by means of an intergovernmental
conference, but the Nice debacle suggested that yet another conference could be
pointless. The EP floated a novel idea: why not organize a convention of
representatives of various national and European bodies, similar to the
convention that drafted the Charter of Fundamental Rights, to draft a new
treaty, possibly even a constitution, for the EU? An intergovernmental
conference would still be necessary to adopt the proposed reforms, but the
convention could do most of the preparatory work. Some member states resisted,
not wanting to lose control of the treaty reform process. Given pervasive
criticism of the Nice Treaty and the intergovernmental conference that preceded
it, however, they acquiesced in the Laeken Declaration of December 2001 calling
for the launch of a Convention on the Future of Europe early the next year.
The European Council agreed in Laeken on the following allocation of
seats in the Convention: one representative each for the national governments;
two representatives each for the national parliaments; two commissioners; and
sixteen members of the EP. The candidate countries (including
The decision to prepare a new round of treaty reform using such a public
and prominent method implied that big changes, analogous to those contained in
the SEA or the Maastricht Treaty, were in the offing. Unlike those major
constitutional events, however, the Convention was not linked to a key policy
initiative, such as completion of the single market, EMU, or closer security and
defense cooperation. Instead, the impetus came from widespread disillusionment
with the EU and the necessity to prepare for enlargement. Despite efforts to
tidy up the treaties in Amsterdam and Nice, the EU was still ‘a Europe of bits
and pieces.’ (Curtin, 1993) It remained ‘a new kind of polity in the making,
not a finished product.’ (Hueglin, 2000) There was a pervasive desire to
clarify the constitutional character of the EU, entrench its basic values, and
strengthen its legitimacy by explicating its nature, elucidating its fundamental
and organizational principles, and improving its institutional arrangements. As
well as strengthening the EU’s domestic standing, member states and others
engaged in the process hoped that the Convention would enhance the EU’s
international profile and effectiveness.
The inclusion of the word ‘constitution’ in the Laeken Declaration,
the first time that EU leaders used the word in such a document, and the ease
with which the exercise came to be known as the ‘Constitutional Convention,’
did not mean that its purpose was state building. Certainly Giscard liked to
compare the Brussels Convention to the Philadelphia Convention of 1787, which
drafted the constitution of the United States. But he did so in order to raise
interest the Convention, especially in the United States. As Giscard well knew,
there was no possibility that the Convention would reconstitute the EU as a
federation like the U.S. or a confederation like Switzerland.
Even if member states wanted to reconstitute the EU as a sovereign state,
it is difficult to imagine how they would do so. The EU does not have a demos, a
single people. It ‘lacks the traditional prerequisite for statehood: the
Staatsvolk, the people in the political sense of the word.’ (Rusconi, 1998)
Lacking independent sovereignty, the EU derives its power from the sovereignty
delegated or attributed to it by the member states. The EU does not have a
federal budget, a police force, or an army. The plethora of languages in the EU
militates against the inculcation of a common European identity. All politics
are local, which in the case of the EU means national. There are no
European-wide political parties, just collections of national parties and party
groups in the EP. Rather than promulgating a full-fledged constitution, the
Convention and the ensuing intergovernmental conference aimed to produce a
‘constitutional treaty.’ The EU would still rest on an international
agreement among sovereign states—but an international agreement of a singular,
constitutional kind.
The Convention on the Future of Europe was an
exceptional political event. The convention that drafted the Charter of
Fundamental Rights, on which it was modeled, provided few pointers to the
Constitutional Convention’s operation or outcome. Whereas the original
convention merely catalogued various political, economic, and social rights in
the EU, the Constitutional Convention sought, among other things, to combine the
EU’s founding treaties into a single document; delimit the competences of the
European level of government; improve the institutions’ efficiency,
accountability, and legitimacy; and enhance the EU’s international profile and
effectiveness.
The more compelling and consensual the Convention’s concluding
document, the more likely that the intergovernmental conference would endorse
the outcome without much dissention. The worst possible result of the Convention
would have been a draft document with lots of square brackets (incomplete text)
accompanied by numerous dissents, especially if the dissents came from
representatives of the same component group, such as national parliaments or the
EP, or the same nationality (for instance, the intergovernmental conference
would hardly have endorsed a document from which most German conventioneers had
dissented).
Whereas only government representatives participate as decision makers in
intergovernmental conferences, national governments, the Commission, the EP, and
national parliaments were all represented in the Convention, with equal rights.
Giscard was not a member of any of the Convention’s component groups (although
he was an ex-government minister, an ex-national parliamentarian, and an
ex-Euro-parliamentarian). Nevertheless, as a former president of France, a
country fiercely assertive of its policy and institutional preferences in the EU,
he carried considerable political baggage. Moreover, Giscard was the founding
father of the European Council, a strongly intergovernmental body, and was
notorious during his presidency of France for his irritation with the Commission
and the small member states.
Giscard immersed himself in the minutiae of the working groups and the
plenary sessions, but remained above the political fray. As the former president
of a big country, he had considerable managerial experience and political
acumen, which proved useful in dealing with a body as heterogeneous as the
Convention. He met the other conventioneers individually and in groups, and
frequently met interested parties outside the Convention, such as government
ministers and parliamentary committees. He avoided association with particular
national, institutional, or ideological positions, but seemed most at home at
meetings of the European Council, ‘his’ institution, where he reported on
the Convention’s work.
Giscard’s unapologetic intergovernmentalism raised the ire of the small
member states, which were already on the defensive after the pre-Nice
intergovernmental conference. Politicians and conventioneers from some small
member states accused Giscard of conspiring with their big counterparts to stack
the EU’s institutional arrangements against them. Giscard made no secret of
his opinion that the EU’s institutional balance was, in fact, an imbalance in
favor of the small member states, which urgently needed redressing. As in the
Nice negotiations, the most contentious issues in the Convention therefore
revolved around the institutions’ composition and decision-making rules.
Procedures,
Timing, and Interests
The Laeken Declaration called for the Convention to
end in March 2003, but Giscard won an extension until June. Even so the
Convention was not entirely finished by that time. Altogether the Convention
lasted nearly eighteen months. It began slowly, with a so-called listening
phase, during which the Convention received submissions from interested
individuals and groups. That provided an opportunity for the members to
familiarize themselves with the Convention method.
Like any major event in the EU, the Convention had to accommodate itself
to political developments in the member states. Both France and Germany held
general elections in 2002. The French elections resulted in a change of
government but not of president; the German elections saw the government
narrowly hold onto power. A new president of France or chancellor of Germany
might not have greatly altered the political context of the Convention, but the
Convention could not run at full speed until elections of that magnitude were
out of the way. As if to signal their intention to pay more attention the
Convention after the national elections, the French and German leaders appointed
their foreign ministers to represent them in the Convention.
The Convention also had to proceed gingerly until after the second
referendum in Ireland on the Nice Treaty, in October 2002. In order to ensure a
yes vote this time around, the Irish government argued that the Nice package of
institutional reforms was the only deal on offer; that the treaty could not be
renegotiated and was essential for enlargement. Yet simultaneously in Brussels,
the Convention was meeting precisely because of the unsatisfactory nature of the
Nice Treaty. Moreover, the Convention’s existence was testimony to the failure
of the treaty to meet the challenge of enlargement. The most contentious issue
in the Convention subsequently became the Nice agreement on the criteria for a
qualified majority vote, which some member states wanted to renegotiate and
others to ring-fence. The trick for the Irish and other governments, including
the Commission, was to play down the significance of the Convention lest Irish
voters decide to reject Nice a second time in hopes that the Convention and
subsequent intergovernmental conference would produce a better result.
Only after the referendum in Ireland did the Convention get down to
substantive business. By that time the Convention had outgrown its early
teething troubles. The presidium met regularly to oversee the work of the
Convention as a whole and, as the work progressed, draft the constitutional
treaty. Giscard selected John Kerr, a former British permanent representative
(most senior official) in Brussels, to head the Convention’s small
secretariat. Kerr, an intergovernmentalist whose appointment helped assuage
British concerns about the Convention, became Giscard’s right-hand-man. The
Convention met monthly in plenary session. These tended to be unruly occasions
when members vied for attention and rode their favorite personal or
institutional hobbyhorses. The conventioneers performed more creditably in the
working groups that the presidium organized to cover the spectrum of agenda
items, from economic governance, to the composition and role of the Commission,
to JHA. The duration and intensity of the working groups depended on the
complexity and contentiousness of the item under discussion.
The Convention’s various groups caucused among themselves with greater
frequency as the Convention proceeded. The sixteen representatives of the EP had
the advantage of working permanently in
Only the Commission, with two representatives in the Convention, had a
clear-cut position. Nevertheless the college of the Commission held a number of
bruising debates on what that position should be. On one occasion Chris Patten,
the external relations commissioner, publicly castigated his colleagues for
suggesting that the position of High Representative for the CFSP, a Council
office, be subsumed entirely into the Commission. Patten argued that such a
proposal, anathema to the Council, would merely antagonize the member states.
Commission President Romano Prodi ran afoul of the college when he tried to
submit a draft treaty on behalf of the Commission without adequately consulting
his fellow commissioners. In an embarrassing climb down, Prodi merely released
the draft as a Commission think piece, on the internet.
Perhaps more significant than the group caucuses were meetings of the
conventioneers in various other configurations. For instance, members met under
the umbrella of the various political ‘families’ to which they belonged,
notably socialist, Christian democratic, or liberal. Members from small
countries, from the candidate countries, from neutral countries, and from
countries with other common features met to coordinate their positions. As the
Convention progressed, conventioneers from the same member state tended to meet
more often, in effect developing national positions on key agenda items.
Although intended to curb the member states’ stranglehold of treaty reform,
the Convention reflected national preferences and priorities with greater
clarity as the deadline for completion approached.
British preferences predominated. That was not because of a strong
British caucus in the Convention, but because of sensitivity throughout the EU
to the strength of Euroskepticism in Britain. The Convention was loath to
challenge entrenched British interests. The most obvious example of this was
Giscard’s decision to drop the word ‘federal’ from the draft constitution
and also drop ‘United States of Europe’ as the new name for the EU. As it
was, Euroskeptics in
Germany and France coordinated their position in the Convention, but did
not dominate the proceedings. Spain, notoriously assertive in the EU, monitored
the Convention closely (the Spanish foreign minister represented the
government), and complained at the end about Giscard’s efforts to revise the
Nice agreement on the composition of a qualified majority vote. Italy was a wild
card during the Convention. Silvio Berlusconi, the country’s Euroskeptical
prime minister, could have played a spoiling role but restrained himself in
hopes of hosting the signing ceremony for the new treaty in
Key
Issues
Giscard’s bias for the European Council was
apparent in the enthusiasm with which he greeted the call, originally made by
British Prime Minister Tony Blair and Spanish Prime Minister Jose Aznar, for an
elected president of the body, with a mandate of up to five years. Blair and
Aznar considered the rotating presidency grossly inefficient. They wanted the
president of the European Council to enjoy the kind of stature and length in
office necessary to impress the EU’s international interlocutors, especially
the United States. They also imagined themselves holding that office. Chirac,
too old to aspire to the position but wanting to strengthen the European
Council, supported their proposal. He convinced Schröder to do so as well. The
quid-pro-quo was Chirac’s support for Schröder’s institutional preference:
an elected president of the Commission. Chirac and like-minded leaders had
hitherto resisted the idea of an elected Commission president, not wanting to
enhance the influence of the office.
These two innovations—an elected president of the European Council and
an elected president of the Commission—became the draft constitution’s
best-known institutional innovations. The Commission proposal was relatively
uncontroversial, given that the Convention was supposed to strengthen the
institutions’ legitimacy. Some conventioneers called for the Commission
president to be elected by universal suffrage, but a majority favored election
by the EP. Eager to keep some national control over the process, representatives
of national governments succeeded in giving the European Council the right to
nominate the candidate for Commission president.
Composition of the Commission
The Commission’s size was another issue having to
do with legitimacy, but also with national influence and institutional
efficiency. The Nice Treaty stipulated that the Commission would continue to
have as many members as there were member states until the EU enlarged to
twenty-seven countries, at which time the Commission would be radically reduced
in size. Small member states generally saw the Commission as a defender of their
interests, and wanted to remain represented in it. They therefore mounted a
counter-attack and pushed the principle of one commissioner per member state.
Because an ever-expanding Commission is inherently inefficient, however, they
also agreed to allow the formation of a core group of commissioners. Thus, each
member state would have the right to nominate a commissioner, but from January
2009 (when, according to the regular five-year tenure, a new Commission is due
to take office), only an inner-group of fifteen commissioners would have voting
right. Those commissioners would be selected on the basis of strict equality
among member states.
A Commission as numerous as the member states, with a decision-making
core and an elected president, could be a formidable body. Yet the proposed
five-year European Council presidency threatened to undermine the Commission’s
position. Advocates of the new European Council presidency were not known for
their support of the Commission. Moreover, small member states fretted that
establishing a ‘super-presidency’ of the European Council would unfairly
benefit the big member states. Their concern seemed excessive, as there was no
guarantee that the president would always come from a big country. On the
contrary, it was equally conceivable that candidates from small countries would
win out when the big member states jostled among themselves to elect a
president. Nor was it clear exactly what the new European Council president
would do, or how much extra authority the position would carry. Presumably both
the Commission and European Council presidents would continue to represent the
EU at the biannual summits with the U.S. president. Presumably also the leaders
of the big member states would continue to want to meet the U.S. president
during an international crisis, regardless of the role of the European Council
president.
Qualified majority voting
The trend toward greater use of qualified majority
voting since the SEA reflected a long-standing demand for more efficient
decision-making. The draft constitution represented another leap forward for the
use of qualified majority voting, which would become the rule in the EU, with
unanimity the exception. Of course the exceptional issues are those that touch
on entrenched national interests, such as taxation for
The scope of qualified majority voting was an age-old question in the EU,
the criteria for a qualified majority being of more recent vintage. In addition
to the original criterion, whereby a qualified majority was about 72 per cent of
the total votes in the Council, the Nice Treaty added two more: a majority of
member states and a majority of the EU’s population. The Nice Treaty also
recalculated the number of votes for each member state. At Giscard’s
insistence, the draft constitution included a simpler system: a majority of
member states representing 60 percent of the EU’s population. Spain and other
countries that benefited most from the reallocation of votes in the Nice Treaty
adamantly oppose the change (Spain got 27 Council votes compared to 29 for
Germany, which has twice Spain’s population). Inevitably, therefore, the
calculation of a qualified majority inevitably dominated the ensuing
intergovernmental conference.
The European
Parliament
Greater recourse to voting in the Council makes the
EU more efficient, extending the EP’s right to co-decide with the Council
makes it more democratic, but arguably less efficient. The record of
co-decision, since its introduction in the Maastricht Treaty and reform in the
Amsterdam Treaty, suggests that the EP has overcome co-decision’s inherent
inefficiency by expediting the process as much as possible. The record also
shows that Europeans do not necessarily perceive the EU as being more democratic
just because co-decision is so prevalent. The Convention called for a major
increase in the number of policy areas subject to the co-decision procedure,
including areas that some national governments wanted to keep out of the EP’s
clutches. Not wanting to go too far, however, the Convention did not suggest
giving the EP a key decision-making role in either foreign and security policy
or police and judicial cooperation.
Foreign Policy and Internal
Security
Foreign and security policy, and JHA, are among the
few areas in which many Europeans want to see greater, more effective EU
involvement. Accordingly, new provisions on JHA would allow for the
establishment of a European Public Prosecutor to fight serious cross-border
crimes, which would require extensive harmonization of national criminal law. In
order to improve the effectiveness of the foreign and security policy, and end
the anomaly that had existed since implementation of the Amsterdam Treaty, the
draft constitution proposed merging the positions of High Representative for the
CFSP and commissioner for external relations into the foreign minister of the EU.
The foreign minister would straddle both institutions by chairing the external
relations Council while also sitting in the Commission. Thus the EU would
maximize its diplomatic and external economic clout.
The debate in the Convention on foreign and security policy assumed
greater urgency, but also an air of unreality, with the onset of the Iraq crisis
in late 2002 and early 2003. Bitter divisions among member states on whether to
support the U.S. war effort demonstrated the difficulty of shaping a truly
common foreign policy and brought British and French moves to craft an EU
defense capability to a screeching halt. It is difficult to imagine that the
existence of a European Council ‘super-president’ and an EU foreign minister
would have bridged the differences over Iraq. Nevertheless the Convention’s
foreign and security policy provisions testified to the members’ determination
to put the Iraq crisis behind them and give the EU the institutional framework
necessary to formulate and implement a united response, subject to the national
governments’ willingness to adopt one. The Convention was realistic in its
approach to a policy area still characterized by intense national interests.
There was no suggestion of obliging
National parliaments
National parliament agitated successfully in the
Convention for a greater role in EU decision-making, although Giscard abandoned
his pet proposal for a ‘Peoples’ Congress’ of national and
Euro-parliamentarians. Most conventioneers dreaded the prospect of explaining to
skeptical constituents the necessity for another European institution,
especially as their task was to consolidate and streamline decision making in
the EU. Instead, the Convention built on the declaration in the Amsterdam Treaty
on the role of national parliaments by suggesting that meetings between national
and Euro-parliamentarians become more frequent and consequential. The Convention
also proposed making national parliaments the guardians of subsidiarity. Thus
one-third of national parliaments could force the Commission to review and
possibly withdraw proposals that seemed unwarranted or disproportionate to the
ends envisioned, and could ask the Court to adjudicate in the event of a
dispute.
In a related move dealing with a core agenda item, the Convention
clarified the division of powers or allocation of competences within the EU.
Thus, the limits of EU competences are governed by the principle of conferral
(competences not conferred on the EU by the member states remain at the national
level), with the uses of EU competences being governed by the principles of
subsidiarity and proportionality. Under the draft constitution, exclusive
competence covers monetary policy, trade policy, the customs union, and part of
the common fisheries policy. Areas of shared competence range from the internal
market to the Common Agricultural Policy, to economic and social cohesion. In
addition, the constitution would give the EU competence to coordinate national
economic and employment policies, define and implement the CFSP ‘including the
framing of a common defense policy,’ and take supporting, coordinating, or
complementary action in areas such as industry, culture, and civil protection.
Charter of Fundamental Rights
Finally, in another major development, the Convention
incorporated the Charter of Fundamental Rights into the draft constitution and
recommended that the EU seek accession to the European Convention for the
Protection of Human Rights and Fundamental Freedoms. In deference to British and
Irish concerns about the economic costs of enforcing social rights that are not
part of national law, the draft constitution acknowledged that the EU’s
fundamental rights would apply only ‘in accordance with Union law and national
laws and practices.’
It was remarkable that the Convention produced a single, comprehensive, and comprehensible draft constitutional treaty. At times during the Convention it seemed that such a disparate and disputatious body could not possibly reach agreement. To a great extent, the Convention owed its success to Giscard’s authoritarian leadership. He wisely avoided taking votes in the Convention, lest opinions harden and the conventioneers find themselves locked into rigid positions. Giscard’s preferred method was consensus by acclamation: his acclamation.
In an effort to quell the inevitable Euroskeptical reaction, Britain’s representative described the Convention as merely a tidying-up exercise. Certainly, most of the text came from the existing treaties and from the Charter of Fundamental Rights. Nevertheless the outcome of the Convention was highly significant. The EU acquired a bill of rights, a feature of many modern constitutions. The draft constitution states unequivocally that the EU is based upon respect for human rights, fundamental freedoms, democratic government, and the rule of law. Any European country that subscribes to those principles may apply to join, and any member state that wants to leave may do so. As well as defining the nature of the EU, the draft constitution outlines its organizing principles: conferred powers, subsidiarity, proportionality, and loyal cooperation (the obligation for all member states to further the objectives of the EU). In addition, the draft constitution explains the EU’s policy scope and institutional arrangements.
The draft constitution is easier to read and understand than the existing
treaties, but it is not a lucid document. Critics complain that it is too long
and has too much jargon. They may be right, but their criticism belies the
singularity and complexity of European integration. The process of pooling or,
as Euroskeptics would say, surrendering sovereignty is wrenching and arduous. It
requires lengthy negotiations, painful concessions, and inelegant compromises.
It is a highly political process, and politics is the art of the possible. The
fate of ‘federalism’ proves the point. Because of their negative
connotations in certain political circles, the words ‘federal’ or
‘federalism’ do not appear anywhere in a quasi-federal constitution. The
less-objectionable words ‘Community way’ are used instead.
The draft constitution alarmed Euroskeptics, but it also disappointed
advocates of deeper European integration. A disinterested observer would surely
conclude that the Convention and its outcome greatly strengthened the EU’s
political foundation. The institutional reforms are sub-optimal, decision-making
will remain cumbersome, and competences may still be blurred, but the
constitution is a marked improvement on the previous treaties and a striking
assertion of the EU’s coming of age. In the process of producing the
constitution, the Convention generated a lengthy public debate about the nature,
purpose, and scope of European integration. Unfortunately, there was relatively
little media coverage of the Convention or public interest in it until the final
weeks. Despite their best efforts, the Convention’s leaders and rank-and-file
members could not excite ordinary Europeans in their endeavors. Although
information on the EU is more abundant than ever, general knowledge of the EU
remains poor. In that sense the democratic deficit is as deep as ever.
Near-unanimous support in the Convention for the draft treaty made it
difficult for the intergovernmental conference to pick it apart in, even if some
national representatives were inclined to do so. Nevertheless there were bound
to be deep disputes in the intergovernmental conference on contentious
institutional issues. It would be ironic if the 2003-2004 intergovernmental
conference were a replay of the 2000 intergovernmental conference, with
diplomats and ministers haggling over the criteria for a qualified majority vote
or the composition of the Commission. Such a spectacle would drag the EU into
serious disrepute.
Regardless of the conduct of the conference, member states would have to
ratify the outcome. Successful parliamentary votes and referenda could not be
taken for granted. Many Irish voters, for instance, would want to know why the
government made such a fuss over Nice when a much more consequential treaty was
in the offing. The greatest irony would be a repeat not of the petty bargaining
in the 2000 intergovernmental conference, but of the Irish electorate’s
rejection of the Nice Treaty.
Guide
to Further
Devuyst
(1999), Mancini (2000), and Weiler (1999) provide excellent accounts of the
constitutional challenges confronting the EU. Chryssochoou (1998) and Lord
(1998) deal specifically with the question of democracy. Siedentop (2000) argues
that the democratic deficit is deep and difficult to surmount; Moravcsik (2002)
counters that the democratic deficit is overblown and not such a bad thing after
all. Steunenberg (2002) examines the constitutional and institutional
implications of EU enlargement.
References
Chryssochoou, Dimitris N.
(1998) Democracy in the European Union.
Convention on the Future of
http://www.ibeurope.com/Themes/g1a.htm#1
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(1993) ‘The Constitutional Structure of the
Devuyst, Youri (1999) ‘The
European Union’s Constitutional Order? Between Community method and Ad Hoc
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Hueglin, Thomas O. (2000)
‘From Constitutional to Treaty Federalism: A Comparative Perspective’, Publius,
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Lord, Christopher (1998) Democracy
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Moravcsik, Andrew and
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Mancini, G. F. (2000) Democracy
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Moravcsik, Andrew (2002)
‘In Defense of the ‘Democratic Deficit’: Reassessing Legitimacy in the
European Union’, Journal of Common Market Studies,
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Piris, Jean-Claude (1999)
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Rusconi, Gian Enrico (1998)
‘The Difficulty of Building a European Identity’, International Spectator,
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Siedentop, Larry
(2000) Democracy in
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‘Lawyers, Judges, and the Making of a Transnational Constitution’, American
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Weiler, Joseph H. H. (1991)
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