Let me begin with a general comment that I think is fundamental to an understanding of the negotiations which led to the Treaty of Nice. The origins of the preparations date back to 1999, when the Commission was in a period of crisis following the resignation of the entire Santer Commission on 19 March and the difficult early days of the new Prodi Commission, which was compelled to give priority to administrative reform and putting its own house in order.5
Given the driving role of the Commission, not least in launching and running the IGCs, this left something of a vacuum, which explains why the notion that Amsterdam's shortcomings were no more than a technicality gained greater credibility. The three matters unresolved in Amsterdam (the extension of the co-decision procedure and above all the weighting of votes in the Council and the composition of the Commission), when seen out of context, look like procedural problems requiring a compromise based on almost mathematical formulae. In fact, they go to the heart of the balance of power in the EU: a matter of institutional equilibrium and the balance of power between the Member States and between them and the European Institutions. In other words, these are essentially constitutional issues that will affect the nature of the Community enterprise and structure in the years to come.
The speech by Joschka Fischer6 had the merit of recognising the scale of the issues at stake and, as such, acted as the catalyst for the debate and drawing in not only the leaders but also the general public.7
Bearing this in mind, we shall examine the interplay between the climate and the actors in the unfolding of the IGC in five sections: 1. Background and agenda; 2. Preparatory work and technical progress; 3. The main issues; 4. The positions of the Institutions, and 5. The positions of the Member States and applicant countries.
The need for a reform to prepare the EU Institutions for the accession
of new Member States was acknowledged during the debates at the last IGC. It is
true that the Treaty of Amsterdam made a notable breakthrough in the area of
extending and simplifying the co-decision procedure: the European Parliament
acquired the right of co-decision over more than 20 new areas, and some
progress was achieved in extending qualified-majority voting (to
research).8 However, it
quickly became obvious that the reforms achieved in Amsterdam did not go far
enough. The Treaty of Amsterdam itself recognises this by including in the
Protocol on the Institutions with the prospect of enlargement of the EU a
provision for a further institutional reform in two stages:
-"At the date of entry into force of the first enlargement of the Union...the Commission shall comprise one national of each of the Member States, provided that, by that date, the weighting of votes in the Council has been modified..." and,
-"At least one year before the membership of the European Union exceeds twenty"...[a new IGC shall be convened to]..."carry out a comprehensive review of the provisions of the Treaties on the composition and functioning of the institutions."
Three Member States (Belgium, France and Italy) made a specific declaration to the effect that the reinforcement of the institutions was "an indispensable condition for the conclusion of the first accession negotiations", emphasising the need for a "significant extension of recourse to qualified-majority voting". Germany made the same point, proposing two IGCs: the first on institutional reforms essential for successful enlargement, the second on amendments to the Treaties aimed at responding better to the expectations of the public, as called for by the Cardiff Summit (e.g. democratic legitimacy of the EU, strengthening the instruments of external policy, security and quality of life).9
Although the Amsterdam Protocol envisaged a two-stage reform, its provisions have been overtaken by events on the ground and by the acceleration of the enlargement process. Consequently, a consensus emerged in early 1999 that the necessary institutional reforms would have to be introduced after a single IGC, and before the conclusion of the accession negotiations with the most advanced applicant countries.
In the same vein, the Cologne European Council (June 1999) reaffirmed the need to convene an IGC to resolve the institutional issues left open in Amsterdam which have to be settled before enlargement, while the Helsinki European Council (December 1999) confirmed the IGC's brief and decided that it should consider the following issues: the size and composition of the Commission, the weighting of votes in the Council, the possible extension of qualified-majority voting in the Council, and other necessary amendments to the Treaties as regards the European Institutions, arising in connection with the above issues or with implementing the Treaty of Amsterdam.
The Helsinki Summit therefore favoured a limited agenda, confined to the amendments arising automatically from the three main changes (weighting of votes, extension of qualified-majority voting, and composition of the Commission), but left open the possibility of adding other points, which is what happened at the Feira Summit (19-20 June 2000), as we shall see below.
As in all negotiations, the first battle was fought over the points for discussion. The Treaty of Nice was no exception. From the start the smaller Member States and the European Parliament pressed for a wider agenda, whereas the larger Member States and the Council defended a more concise one. The former cited the political needs of a larger Union in support of their case, while the latter warned of the danger of the IGC getting bogged down, stressing the practical aspects of the negotiations.
The first position contained integrationist elements and produced a proposal for a single IGC to deal with the entire agenda proposed by the Germans for two separate IGCs. Though accepting minimal institutional change to meet the operational needs of enlargement, it placed emphasis on citizens' rights and strengthening the EU's external policy. It underlined the need to build further on the EU's supranational structure, while at the same time specifying the respective spheres of action of the EU and the Member States, moving towards a federal model built on the Community approach. This implies a strong, independent Commission accountable to a stronger European Parliament and European Court of Justice.
It also advocated common redistributive policies funded from a less austere Community budget and a system of governance based on multipolar synergy between the principal Institutions, with the Commission enjoying greater executive powers (not least in the field of external policy) and the European Parliament providing the democratic legitimacy, backed by a Council of Ministers increasingly confined to the role of a second chamber in the Union. This scenario was seen as promising more effective decision-making and greater democratic legitimacy for the Community system, backed by the symmetry of the Institutions and a European system of government based on the supremacy of Community bodies, rather than the hegemony of the most powerful Member States.
Behind this strong support for an integrationist and federalist approach built around an extended agenda, the small Member States (and to some extent the European Parliament) obviously hoped to gain a comparative advantage in the manoeuvring in the global negotiation. A minimalist agenda (reduction in the number of Commissioners plus reweighting of votes in the Council), even with the extension of co-decision, would inevitably lead to a reduction in their relative power in the Institutions, whereas a wider agenda would allow the construction of a more balanced final package.
Given that by then the debate had effectively been broadened by the intervention of Joschka Fischer and other European leaders, is no coincidence that the Feira Summit resolved this first dispute pragmatically. The great constitutional debate was carefully put on one side, but three important themes were officially introduced into the Nice agenda:
Let us now turn to the preparation and conduct of the IGC.
The founding treaties of the EU can be revised by an IGC of representatives of the Governments of the Member States. However, the agreed modifications cannot enter into force until they have been ratified by all the Member States in accordance with their respective constitutional requirements.
Article 48 of the Treaty on European Union formally requires the Council to consult the Commission and the European Parliament before the Presidency may convene and open the Conference. However, two important contributions were already on the table before the Commission delivered its opinion: on 18 October 1999 the high-level group of experts chaired by the former Belgian Prime Minister, Jean-Luc Dehaene, presented its report on the institutional implications of enlargement, as requested by the Commission;10 and on 10 November 1999 the Commission adopted its contribution to the report being prepared by the Presidency for the European Council.11
Mention should perhaps also be made here of another document on the reorganisation of the Treaties, commissioned from the European University Institute in Florence, and presented to President Prodi a little later, on 15 May 2000.12
After these unofficial preliminaries, the Commission issued its opinion on 26 January 2000, and the European Parliament followed suit on 3 February 2000.13
The IGC was officially inaugurated on 14 February, in conjunction with the General Affairs Council, under the Portuguese Presidency, and completed its work on 7-11 December 2000 under the French Presidency at the Nice European Council.
Political responsibility for the IGC rests with the ministers meeting in the General Affairs Council. The Commission takes part in the deliberations. The ministerial meetings are prepared by a Group of Representatives of the Governments of the Member States. The Commission participated in these meetings and Commissioner Barnier was given special responsibility for this task.
Two observers from the European Parliament, Elmar Brok and Dimitris Tsatsos (members of the two main political groups, the European People's Party and the Party of European Socialists, respectively), attended the meetings of the Group of Representatives and were able to intervene to convey Parliament's view on any of the questions discussed. Each ministerial session was preceded by an exchange of views with the President of the European Parliament, Nicole Fontaine. This represents a significant advance in the role of the European Parliament in the negotiations. Although its two representatives were observers rather than full participants, this was an advance on the previous IGC, where parliamentary participation was limited to exchanges of views between the Group of Representatives and Parliament's representatives, which, though frequent, were informal. The Conference meetings at Head of State and Government level (in Feira and Biarritz, in June and October 2000 respectively), were also preceded by an exchange of views with the President of the European Parliament, as in the case of previous IGCs.
The Group of Representatives met on average two days a week, while the ministerial meetings (twice a month) were often preceded by informal discussions ("conclaves"), which were extremely useful for familiarising delegates with the dossiers and increasing mutual understanding, thereby contributing to progress. So despite the fact that the IGC was formally in the hands of the ministers, they played only a supervisory role compared to that of the Group of Representatives, where the real work of the Conference was done.
The General Secretariat of the Council provided secretarial services for the IGC and prepared all the official Conference documents. These documents and those submitted to the IGC by the Member States, the applicant countries and public and private organisations, are available on the Council's website. Here, too, there was a significant improvement in transparency compared with past IGCs, when the Presidency merely organised a press conference after each meeting.14 Furthermore, the Commission, in partnership with the European Parliament and the Member States, inaugurated an active dialogue with the public and elected representatives of the national, regional and local authorities throughout the EU. This "Dialogue on Europe" initiative, approved by the Commission on 15 February 2000, provided an opportunity for the citizens and information relays (networks and NGOs representing civil society) to keep abreast of the proceedings of the IGC and to express their opinions. Mr Barnier and a number of other Commissioners took part in debates about the nature of institutional reform and conducted a series of meetings with national Parliaments.15
The negotiations took ten months and can be divided into two distinct periods: the first, up until June 2000 and the Feira Summit under the Portuguese Presidency, was an exploratory phase, as participants found their bearings. The second phase, under the French Presidency, contained the more substantive discussions in which the different positions were clarified and successive attempts were made to find a compromise.
The results of the first period may be summarised as follows: the most heavily discussed topic was the extension of qualified-majority voting in connection with the co-decision procedure. Although almost all delegations were aware that unanimity would be impracticable in an enlarged EU, many of them had serious difficulties in agreeing which provisions should in future be subject to a qualified majority. The Presidency drew up a list of some 25 areas (very similar to the Commission's proposal) where the unanimity rule could give way to qualified-majority voting. Until Feira, a consensus existed on only two provisions, but most of the other proposed articles were backed by a large majority of Member States. The main difficulties concerned the politically sensitive issues of taxation and social policy. A number of delegations were also opposed to any automatic extension of co-decision in line with the extension of qualified-majority voting.
From the very beginning it was clear that a wide gulf separated the larger and smaller Member States on the matter of the composition of the Commission. While the large countries (Germany, UK, France, Italy and Spain) were in favour of restricting the number of Commissioners, the others insisted on one Commissioner per Member States, with most rejecting the idea of any kind of formal order of precedence of Commissioners (distinction between seniors and juniors). The possibility of increasing the number of Vice-Presidents was left open.
The weighting of votes in the Council was discussed for the first time by the Group of Representatives on 4 April. It appeared that most delegations were thinking in terms of reweighting on the basis of the present system, with more importance being given to the demographic factor, rather than introducing a new system of a dual majority (population and Member States). There was also a clear link between this issue and the surrender of one Commissioner by the large Member States.
With regard to the composition of the other Institutions, all delegations were in agreement on retaining the upper limit of 700 MEPs as laid down in the Treaty of Amsterdam, but there were no agreement at all on how the seats would be allocated. Minor disagreements were also apparent on the number and allocation of seats in the Court of Auditors, the Economic and Social Committee and the Committee of the Regions, the large countries in general favouring more restrictive solutions.
The European Court of Justice and the Court of First Instance were discussed separately on the basis of a study on reforming the Community judicial system curried out by a technical group (Friends of the Presidency). The Commission also delivered a specific contribution, approved on 1 March, strongly arguing in favour of an immediate thoroughgoing reform to relieve the Court's current heavy caseload and prepare for enlargement.16 This proved to be one of the less controversial subjects, and the Presidency drafted the necessary modifications to the Treaty and the Protocol as early as 31 May.17
Finally, closer cooperation was discussed for the first time in a special informal meeting of the Group of Representatives in Sintra on 14-15 April. The initial opposition of some smaller countries to formal discussion in the IGC of the conditions for introducing closer cooperation appeared to be gradually weakening, thus allowing this item to be included on the Feira Summit agenda.18
The first initiative of the French Presidency was to establish a group to prepare the ministerial meetings and deal with technical matters. It was decided that in addition to the Special Summit in Biarritz (13-14 October), ministerial conclaves would be organised on 24 July, 8 October, 5 and 19 November, and 3 December.
Although it did not achieve any great breakthroughs on the most
sensitive issues, the Biarritz Summit did enable the political leaders to
familiarise themselves with the dossiers and form a clear idea of their
partners' main concerns. This allowed the Presidency to devise and pursue a
strategy of active isolation of those Member States that had
insurmountable difficulties relating to the use of qualified-majoring voting on
specific articles or on other particular points of the negotiations.
Three types of issue were identified: a) those that could be kept out of the final discussions and for which agreement could be obtained before the European Council in Nice (Court of Justice and Court of First Instance, composition of Institutions other than the Commission); b) pivotal issues (qualified majority, reinforced cooperation) for which the Group of Representatives had a mandate to go as far as it could in order to arrive at significant agreements before Nice; and c) questions relating to the balance of power (weighting of votes, composition of the Commission), where there would be only a technical examination of the options on the table and the final decision would be left to the Heads of State or Government in Nice.
Discussion also began on a number of issues where proposals existed and the Commission had outlined its position: reorganisation of the Treaties, European political parties (12 July), and establishment of a European Prosecutor (29 September). Other points considered by the delegations were the inclusion in the Treaty (Article 7) of a preventive provision on breaches of democratic principles, the possibility of creating a legal basis for setting up independent European administrative bodies (agencies), the clarification of the hierarchy of norms in Community law and, above all, the Charter of Fundamental Rights19 and the accession of the EU to the European Convention on the Protection of Human Rights and Fundamental Freedoms.
Substantial progress was made on the extension of qualified-majority voting and reinforced cooperation. A partial transfer to qualified-majority voting was thus envisaged for social security (Articles 42 and 137), justice and home affairs (Article 67), taxation (Article 93 and 175), and commercial policy (Article 133). On the subject of reinforced cooperation, the large majority of delegations were willing to agree to the abolition of the veto and a reduction in the minimum number of participating states to one-third of the Member States for the first pillar and the application of this arrangement to the third pillar. For the second pillar, the number of Member States totally opposed was reduced to five.
As a consequence, the Presidency was able to present an amended draft treaty on 3 November in which only three chapters remained unresolved: the composition of the Commission, the allocation of the 700 MEPs between Member States, and the weighting of votes in the Council.20
From this brief outline of how the negotiations unfolded it appears that the approach adopted for this IGC was midway between the methods of Maastricht and Amsterdam. The Maastricht Treaty was negotiated in the traditional way, working from a basic text produced at a very early stage, which was then the subject of numerous reservations, insertions, counter-proposals and footnotes. The next stage consisted of reducing the number of reservations and insertions by means of compromises in the text, to produce, at the end, a single, final version acceptable to all. The Treaty of Amsterdam, on the other hand, was negotiated on the basis of outline texts, not drafted in legal form, accompanied by numerous proposals from different delegations. The ministerial meetings took the form of endless tours de table to identify the common ground. Progress on the various subjects was extremely slow, and successive Presidencies reworked the drafts in order to present the Heads of State with the lowest common denominator before the national delegations even had a chance to study the technical aspects of the texts in depth.
The negotiations in Nice, which started with a limited agenda but became more flexible as time went on, were conducted on the dual basis of exploratory discussions that also drew together the arguments and analytical reports coupled with texts drafted in legal form. The technique adopted often consisted of asking delegations specific questions about the most controversial points.21 This method ensured that negotiations on the hard core of issues to be dealt with were efficient, while at the same time leaving the door open to wider debate if the consensus demanded it.
We shall confine ourselves here to examining the substance of the five principal issues discussed in Nice (qualified-majority voting and the co-decision procedure, the weighting of votes in the Council, the composition of the Commission, the composition of the European Parliament, and closer cooperation), before outlining the positions of the actors in the negotiations as a whole.
The original treaty of Rome (1957) provided for a decision to be taken
by unanimity in the Council for most of the areas covered. Nevertheless, a few
provisions were already subject to qualified-majority voting, and the Treaty
foresaw the introduction of majority voting in many cases after the end of the
transitional period in 1966. This led to the famous crisis, when France under
General De Gaulle rejected a series of Commission proposals, blocking their
adoption in the Council and refusing to move towards majority voting. France's
"empty chair" policy was resolved by the Luxembourg compromise in January 1966,
when the Council stated in its conclusions that "where very important interests
of one or more partners are at stake, the members of the Council will
endeavour, within a reasonable time, to reach solutions which can be adopted by
all [of them]...".
This event led to the development of a "veto culture" which severely hampered the progress of European integration for many years. Although majority voting was in fact introduced in several areas in line with the provisions of the Treaty, the working assumption remained that if objections were raised, the veto would apply. In spite of this compromise, the Council in practice started taking a vote when no consensus could be found after serious debate in the course of the 1980s, particularly after the Single European Act, which generated a huge amount of legislation implementing the internal market. It was a fair application of the Treaty and a correct interpretation of the Luxembourg compromise, which was intended only for cases involving a vital national interest.
Qualified-majority voting was seen as a necessary corollary to successive enlargements of the EU and, coupled with the co-decision procedure, was considered the main way of reducing the democratic deficit of the European Institutions. Qualified-majority voting already applied to a very large range of policies; however, several important and sensitive issues remained subject to the unanimity rule. The Treaty of Amsterdam did not succeed in transferring enough policy areas to qualified-majority voting to free up the decision-making process looking ahead to a Union of 28 Member States.
It is curious to recall that Article 205 states that the Council shall act by a (simple) majority of its members, save as otherwise provided by the Treaty. Thus, the simple majority is the rule, and qualified majority and unanimity the exceptions. In practice, however, the balance has been reversed and we are now moving towards a situation where qualified-majority voting will be the rule, with unanimity and simple majority the exceptions.
There are currently 75 provisions subject to unanimous voting in the Treaty. The bulk of these articles are in the areas of institutional balance, the common foreign and security policy and police and judicial cooperation. However, even provisions closer to the Community's areas of competence are still covered by unanimity (e.g. taxation, social security). It was widely accepted that as the EU enlarged it would become increasingly difficult to take unanimous decisions, and that in the end it would be impossible. The risk for the EU was that unless these provisions were changed at the IGC negotiations, a decision-making process devised for six Member States would grind to a halt, paralysing the EU.
Although the principle was not in doubt, the discussions seemed to revolve around three options: qualified-majority voting as the general rule with limited exceptions listed exhaustively, identification of the issues to be moved to qualified-majority voting without an exhaustive list of the areas excluded, and a case-by-case approach.
The Commission proposed the first option, identifying five issues where unanimity must remain (accession and association agreements, essential decisions affecting the institutional balance, derogations from the Treaty, Council decisions to be adopted by the Member States according to national ratification procedures, and decisions on taxation and social security not related to the functioning of the internal market). In the end, however, a case-by-case approach prevailed, as we shall see below.
In its opinion on the 1996 IGC, the Commission also stated that qualified-majority voting should be linked to the co-decision procedure for issues of a legislative nature. The Commission further defined legislative acts as rules of general scope determining fundamental principles, general guidelines and the main elements of any action provided in the Treaty, assuming that the implementation provisions are to be taken at its level.
The co-decision procedure requires consensus between the Council and the European Parliament for the adoption of the provisions in question. It was introduced by the Maastricht Treaty and further expanded and simplified by the Treaty of Amsterdam (Article 251, former Article 189b). It was intended to strengthen the powers of the European Parliament, which now shares legislative authority with the Council, giving the European institutional framework a bicameral dimension. The Commission rightly pointed out the inconsistency of combining unanimity in the Council with the co-decision procedure and consequently proposed the alignment of qualified-majority voting and the co-decision procedure, together with the abolition of the cooperation procedure in the area of Economic and Monetary Union. According to the Commission, commercial policy, basic anti-dumping legislation, general import-export regimes, and the main instruments of the common agricultural policy and fisheries policy should all come under the co-decision procedure. Finally, the Commission argued for the automatic introduction of the co-decision procedure in 2004 for all matters relating to the areas of security and justice.
A number of Member States were reluctant to proceed in such a structured and comprehensive way, preferring a case-by-case approach.
Since the demographic realities of the Member States differ, the Treaty of Rome established the qualified majority by allocating votes on the basis of the population, weighted in favour of the less-populated countries. This system was modified with successive enlargements, but the fundamental assumption remained. Today, when the Council acts by qualified majority, the votes of the Member States are counted as follows: Germany, France, Italy, UK 10 votes each; Spain 8 votes; Belgium, Greece, the Netherlands and Portugal 5 votes each; Austria and Sweden 4 votes each; Denmark, Ireland and Finland 3 votes each; and Luxembourg 2 votes. The Council can act by qualified majority when 62 votes out of a total of 87 are in favour of a decision, 26 votes constituting the so-called blocking minority.
Successive enlargements to include countries with a small or medium-sized population have already increased the relative weight of the Member States with smaller populations to the detriment of those with larger populations. This situation is expected to be unacceptable after the next enlargement. In extreme cases the extrapolation of the present system might lead to a situation in which a group of Member States representing only 10% of the total population of the EU could block a decision, thus preventing a group of Member States representing a large majority of the EU's population from proceeding further with the decision-making process.
Clearly, to restore the representativeness of the initial qualified majority, the relative weight of the votes of the more heavily populated countries must be increased. But the result must not be decision-making by a minority of Member States, and the overall decision-making process must not be made more difficult.
This being the case, there seem to be two possible options for determining the qualified majority in an enlarged EU. The Protocol annexed to the Treaty of Amsterdam envisages revising the qualified majority either by reweighting it (i.e. by adapting the present system) or by creating a dual majority on votes and populations. The Commission proposed a dual/simple majority system, whereby a qualified-majority decision would be deemed to have been made if it were backed by a simple majority of Member States representing a majority of the total population of the EU. This system had the advantage of being simple, clear, transparent and stable, maintaining the right balance between smaller and larger Member States throughout the successive enlargements.
This issue, which is linked to the extension of qualified-majority voting and the composition of the Commission, was one of the most sensitive for the present IGC.
The link between this and the weighting of votes in the Council is evident, in that reducing the number of the Commissioners might mean the larger Member States being required to relinquish one of the two seats they currently occupy in the Commission. In fact, with each previous enlargement, the composition of the Commission has been altered by the act of accession: from 9 to 13 following the accession of Denmark, Ireland and the UK in 1973, rising to 14 with the accession of Greece in 1981, 17 with the accession of Spain and Portugal in 1986, and 20 after the most recent enlargement to Austria, Finland and Sweden in 1995. If this continued the Commission could have 35 members with the accession of 13 new Member States, at which point it would no longer be an efficient executive and would be more like a general assembly.
The size of the Commission can be changed by unanimous decision of the Member States without convening a new IGC. Thus, the Protocol attached to the Treaty of Amsterdam stated that, up to 20 Member States, the Commission could be composed of one Commissioner for each Member States. Beyond this number its composition should be changed.
This Protocol has quickly been overtaken by events. The EU is currently negotiating with twelve countries (seven of which are expected to enter before 2004) and others may be involved in the near future. In a Union of 30 or more Member States, a Commission of 40 or so members will clearly be deadlocked.
Something must be done, but what? The obvious options (maintaining the status quo, appointing one Commissioner per Member State, or having fewer Commissioners than Member States) are all, for different reasons, unacceptable to different groups of Member States. There are variant forms of each of these options and they can be linked to the weighting of votes, to internal reorganisation of the Commission, the extension of the powers of the President, the rotation between Member States and the possible creation of a hierarchy of Commissioners.
For all of these reasons, this was possibly the most controversial issue for the present IGC.
The European Parliament was at first a purely consultative assembly consisting of representatives of the national parliaments (under ECSC/1951 and EEC/1957). In 1976 it was decided that its members would in future be elected by direct universal suffrage, and 518 MEPs were elected throughout the Community in 1979. Since then, the powers of the European Parliament have steadily increased: the Single European Act (1987) changed the assembly's name to the European Parliament and conferred new powers on it, particularly by introducing the cooperation procedure, which for the first time gave the European Parliament a conditional power to the agenda setting. Since then, the legislative role of the European Parliament has steadily expanded, notably with the gradual extension of the co-decision procedure by the Maastricht and Amsterdam Treaties (1993 and 1997). At the same time, the number of members has also increased, with the unification of Germany and the accession of new Member States, bringing the total today to 626 MEPs.
Article 190 of the Treaty provides that the system aims to "ensure appropriate representation of the peoples of the Member States brought together in the Community." The actual composition is based on the decision of the Edinburgh European Council of December 1992, following a proposal from the European Parliament itself. It is based on a relative proportionality principle giving a slight comparative advantage to medium-sized and small Member States.
In 1997, the Amsterdam Treaty imposed an upper limit of 700 on the number of the members of the European Parliament. Given the fact that the current membership is 626, the distribution of seats between all the Member States must be drastically revised if membership is to remain within that ceiling after further accessions. Furthermore, he solution must respect the "appropriate representation of the peoples" criterion established by Article 190 of the Treaty.
There are a large number of possible options. The Commission therefore stated that the European Parliament itself should propose a new system for the distribution of seats, as it did in 1992. The European Parliament expressed a preference for regressive proportionality, based on a lower minimum (4 seats for the smallest Member States), rising by bands of national population for the others. But another possibility would be to extrapolate the present system coupled with a linear reduction in the number of the seats affected by a coefficient reducing them after each enlargement in order to remain within the stipulated ceiling of 700. The larger Member States, however, would prefer a strict proportionality between the population and number of seats allocated.
Whatever the distribution method adopted, the Commission proposed that a number of MEPs be elected from EU-wide lists, thereby creating an incentive to develop genuine European political parties.
The possibility of closer cooperation between some Member States is not a new idea. Even under the original Treaty, such possibilities existed outside the Community's legal order (Article 306/the Benelux paradigm). Since 1985 the removal of internal border controls has been organised by the Schengen Agreement, initially between five Member States (which subsequently increased to 13).
The novelty of the Maastricht Treaty lay in explicitly referring to closer cooperation in the Treaties, but in a negative way, by allowing some Member States to opt out of specific common policies (e.g. the Danish and British opting out on the single currency).
The Treaty of Amsterdam provided, for the first time, the possibility for closer cooperation within the single institutional framework subject to strict conditions22. Subject to these conditions, the Member States may establish closer cooperation in the first and third pillar within the institutional framework of the EU (Articles 11 EC Treaty and Articles 40, 43-45 Treaty on European Union).
The "constructive abstention" mechanism of Article 23 Treaty on European Union gives Member States the same possibility in the second pillar (common foreign and security policy).
After the current enlargement the EU will inevitably become more heterogeneous for a long period, thus enhancing the need to extend the scope for closer cooperation in order not to delay the integration process unduly. Hence, the arguments for relaxing the conditions referred to above and for no longer allowing a single Member State to block the possibilities of further cooperation.
In this spirit, the Commission proposed removing the veto, setting the minimum number of Member States that can establish closer cooperation at one-third of the total membership of the EU, and allowing for the possibility of doing so in the area of security and defence policy.
The counter-arguments, voiced mainly by the small Member States and countries applying for membership, stressed the risk of a less cohesive, less mutually supportive Europe, and the fact that so far we have little experience of the mechanisms provided for in the Amsterdam Treaty, which have not yet had a chance to operate properly and have an impact.
Clearly, closer cooperation is a very sensitive issue with important constitutional implications, and it provides a link between the IGC and the wider debate on the future shape of the EU.
In accordance with Article 48 of the Treaty on European Union, only the Commission and the European Parliament were invited to submit opinions before the launch of the IGC. We shall therefore present their views first and in full, because their contributions set the parameters for the negotiation and illustrate the extent and topography of the battlefield. We shall then look briefly at the contribution of the Court of Justice, which was very concerned about the impact of enlargement on its workload and the structural changes that this would entail. We will conclude with the Committee of the Regions and the Economic and Social Committee, whose composition will also be affected by the participation of new Member States.
The opinion delivered on 26 January 2000 entitled "Adapting the institutions to make a success of enlargement",24 reflects the guidelines laid down by its earlier contribution to the Helsinki European Council.
With regard to the decision-making process, qualified-majority voting should be the general rule and unanimity the exception. Accordingly, the Commission suggests that the IGC should determine categories of provision in respect of which there are serious and lasting reasons for maintaining unanimity. It then reviews all areas of the Treaty in which unanimity is still required and produces a list of provisions to be transferred to qualified-majority voting. It proposes the establishment of a link between qualified-majority voting and the co-decision procedure for all legislative acts and the subsequent elimination of the cooperation procedure. It also suggests extending the scope of Article 133 to all services, investment and intellectual property and introducing mandatory consultation of the European Parliament prior to the conclusion of international trade agreements.
While recognising the merits of a vote-weighting system that ensures a qualified majority represents about two-thirds of the EU's population and about 70% of the total votes and excludes the possibility of a decision being taken by a minority of Member States, the Commission recommends the use of the simple majority of Member States representing a majority of the total EU population, for the sake of simplicity and transparency. Finally, with regard to closer cooperation, the Commission proposes removing the veto, setting the minimum number of Member States needed to undertake closer cooperation at a third of the total membership of the EU, and extending this possibility to the field of common foreign and security policy.
For the European Parliament, the Commission proposes that the upper limit of 700 MEPs be retained, that the task of determining the method of dividing these seats among the Member States be left to Parliament itself, and that provision be made for the possibility of electing a number of MEPs on EU-wide electoral lists, in order to promote the formation of genuinely European political parties.
With regard to the future of the judicial system, the Commission suggests, in its additional contribution to the IGC "on the reform of the Community Courts", the redefinition of the structure of the EU's judicial branch.25 To this end it proposes the clarification and redistribution of the Court's jurisdiction as part of a flexible design, giving national courts more scope to handle the preliminary ruling procedure, redistributing powers between the Court of Justice and the Court of First Instance, especially with regard to direct actions, and by reducing the volume of certain categories of special cases by creating specialised bodies under the supervision of the Courts (dealing with trademarks and Community staff). The Court of Justice should deal only with very important legal issues considered essential to the Community legal order, functioning as the EU's Supreme Court. The scope of the Court of First Instance's legal activity should be expanded to include preliminary rulings on selected cases and less important direct action cases. National courts should be given more extensive powers in the matter of the application of Community law by the Member States.
The Commission also proposes adapting the membership of the Court of Justice and the Court of First Instance in the light of their caseload, which will mean more judges for the Court of First Instance and a profound reorganisation of the chamber system. A minimum representation of all Member States must be retained. The Commission also states that judges must be appointed by the Council acting by qualified majority, with a system for verifying nominees' legal qualifications. The relevant provisions of the Treaty and the rules of procedure for both Courts, must be modified accordingly.
In another additional contribution to the IGC on institutional reforms "on the criminal protection of the Community's financial interests: a European Prosecutor", the Commission proposes the modification of Article 280 and the introduction of a new legal basis (Article 280a) with a view to setting up a system of rules relating to criminal proceedings in cross-border fraud, notably by the creation of a European Public Prosecutor.26
As regards the Court of Auditors, the Commission advocates an upper limit of twelve members and a six-year, non-renewable mandate.
As regards the Economic and Social Committee, the Commission proposes that it should be made more representative of civil society by extending membership to other socio-economic categories. The level of membership should remain unchanged and it can decide for itself whether to pronounce on legislative matters. The Committee of the Regions should increase in size once new Member States are admitted, until its membership is around a third of that of the European Parliament, with the same system of distribution of seats.
Last but not least, as regards its own structure, the Commission proposes changes to its composition, with the number of Commissioners being set either at 20, using a system of rotation laid down in the Treaty and respecting the equality between Member States, or at one Commissioner per Member State, combined with provisions fundamentally reorganising its internal structure.
In its Resolution on the convening of the IGC, adopted on 3 February 2000, the European Parliament described the EU's reform process as essential. Thus, it objected to the excessively narrow agenda, which did not even comply with the Amsterdam Protocol calling for a comprehensive review of the Treaty provisions as regards the institutional framework and which failed to satisfy the requirements of greater effectiveness and democratic legitimacy. The European Parliament called for an open-minded approach and stated that it would itemise its priorities to the IGC in a subsequent report based on its Resolution of 18 November 1999. Furthermore, the European Parliament argued that the IGC's final decision should be submitted to it via the assent procedure.
In a broader Resolution of 13 April 2000, the European Parliament set out its objectives, calling for a more democratic and effective EU and reaffirming that the composition and functioning of the Institutions and the balance between them must reflect its dual legitimacy as a union of peoples and a union of States. The result would be a bicameral model of European governance to be institutionalised in the Treaty.
In this spirit, the European Parliament considers that unanimity in the Council should apply only to constitutional issues. The co-decision procedure must be extended to the entire legislative programme, and the cooperation procedure must be abolished. The European Parliament should be required to give its assent to all changes to the Treaties, international agreements, decisions on the EU's own resources and major appointments.
The European Parliament wishes to see a simpler streamlined text of the Treaties brought together in a single document consisting of two parts: the first would be limited to the constitutional aspects and could be adopted by unanimity of the Council, while the second would contain the other provisions of the present Treaties and could be modified by a qualified majority of the Council with the Parliament's assent.
The European Parliament calls on the IGC to incorporate the Charter of Fundamental Human Rights into the treaty, to permit the EU's accession to the European Convention for the Protection of Human Rights and to allow direct access to the Court of Justice for any EU citizen acting individually.
The European Parliament welcomes and encourages closer cooperation as a factor that would create further dynamism within the EU. However, closer cooperation should be pursued only when the EU is genuinely incapable of collective action, with a membership of at least one-third of the Member States and after the Council has approved the creation of a "pioneer group" by a qualified majority.
The European Parliament would like to see a smooth transition from the Western European Union to the common foreign and security policy and believes that a Council of Defence Ministers must be instituted. The European Parliament wishes to be consulted and kept regularly informed on foreign policy and defence issues. The same applies to economic and social issues. The distinction between compulsory and non-compulsory expenditures should be abolished, all the European budget should be financed by EU's own resources and its level should be fixed by the co-decision procedure. Increased Community control over the third pillar (police and justice affairs) should be encouraged, and EUROPOL must be brought under EU jurisdiction.
On the subject of qualified-majority voting, the European Parliament supports a dual majority system (population + Member States) and calls for a major reorganisation of the Council's services and internal procedures.
For the Commission, the European Parliament suggests that each Member State should have one Commissioner until 2010, after which the Commission would consist of a President and 20 Members. The President would be selected by the European Parliament from a pool of candidates approved by the Council. The President would then personally nominate the other 20 Commissioners after consultations with the Member States, ensuring that each Member State has a Commissioner in office at least every two terms. Any Commissioner would be expected to tender his or her resignation if asked to do so by the President, who would have very substantial powers. The European Parliament wishes to secure the right to dismiss individual Commissioners through an appeal process before the European Court of Justice. The Commission would have the right to request a vote of confidence from the European Parliament. If it failed to win this vote, the entire Commission would be expected to resign. The Commission must retain the right of legislative initiative and exercise extensive executive and regulatory authority.
As regards the judicial system, the European Parliament demands the right to bring an action before the Court of Justice on the grounds of misuse of powers, lack of competence, infringement of a substantial procedural requirement, breach of the Treaty and any rule of law relating to its application, or failure to act. It also calls for the Court of Justice's jurisdiction to be enlarged to include matters relating to justice and home affairs. The European Parliament declares itself in favour of the creation of a European Public Prosecutor's Office, set up as an independent entity within the framework of the EU to defend the Community's financial interests.
The European Parliament adopted more generous positions on the membership of the Economic and Social Committee and the Committee of the Regions, accepting that their membership could reach one-half the size of Parliament itself.
Finally, as regards its own membership, the European Parliament accepts the upper limit of 700 MEPs, assuming that each Member States will have at least four seats. But the essential problem is postponed until 2009, when the number of seats per Member State should be reweighted and balanced according to population.
Both Courts are in favour of one judge per Member State, but the Court of Justice could accept a more restricted membership. In general, the Courts agree with the "Report by the working party on the future of the EC's court system" of 4 February 2000 and the position of the Commission delivered on 1 March, which was largely inspired by this report. Thus, the Courts accept the idea of filtering appeals, of giving the Court of First Instance limited competence in preliminary rulings, of creating specific bodies of a judicial nature to deal with trademark and staff issues and of their rules of procedure being decided by the Council on the basis of a qualified majority and not, as currently, by unanimous vote.
This explains why the Group of Friends of the Presidency quickly agreed on a final text for the necessary amendments. All the Member States agreed that the Presidency should find compromise formulas for the unresolved issues, so that this chapter would not need to be discussed in Nice.27
The Court of Auditors, the Economic and Social Committee, and the Committee of the Regions made proposals mainly related to improving their own political and administrative situations.
Thus, the Court of Auditors called for one member per Member State, for the nomination procedures and mandates to be harmonised with those of the Court of Justice, for provision to be made for constituting chambers and for the right to lay down its own rules of procedure. It also recommended the appointment of an independent body to be directly responsible for assessing the financial liability of EU officials and the adoption of the Financial Regulation by qualified majority.
In an own-initiative opinion adopted on 17 February 2000, the Committee of the Regions called for greater democracy at local and regional levels and argued that the IGC agenda should be broadened with a view to properly adapting the Institutions. In this context, it is essential to extend the principle of subsidiarity to regional and local authorities. It also wanted to be recognised as one of the main Institutions referred to in Article 7 of the Treaty and to increase its membership after enlargement to a maximum of 350.
In its opinion adopted on 1 March 2000, the Economic and Social Committee emphasised the changes and expectations of civil society. It was in favour of maintaining its three-group structure and the current method of appointment, which looks more like a conservative reflex to preserve the status quo than a response to the emerging needs of civil society. It advocated equal treatment with the Committee of the Regions as regards membership after enlargement and proposed that its consultative role should be enhanced through innovations such as offering the Commission the option of exploratory consultation of the ESC prior to legislation, and suggesting that it be given responsibility for organising and coordinating consultation on specific complex subjects.
It is clear from this brief survey of the Institutions' positions that only the European Parliament and the Commission tackled all of the issues under consideration; the other institutions conducting a more self-interested debate, confining themselves to problems that directly affected them (pro domo approach).
The positions of the European Parliament and the Commission lie somewhere between ambition and reality: the European Parliament's views being more ambitious, the Commission's more realistic. The European Parliament thus sets itself up as the intellectual inspiration behind integration and the driving force behind progress towards this goal (defender of an ideal European Constitution), while the Commission plays the role of impartial referee between the various positions, suggesting possible compromises that, though far-reaching, might be acceptable to all (honest broker).28
Rather than presenting the preferences expressed during the negotiations regarding the main themes of the IGC country by country, it will be more useful to try to plot the balance of power in the negotiations, presenting the different views by group of Member States (and applicant countries). This will show the divisions within the IGC and the strategic or tactical alliances contracted by the partners in the course of the negotiations.
On the matter of the distribution of power within the EU it was only to be expected that the main split would be between the small and the large states. This was clearly apparent in the discussions about the composition of the Commission and to a lesser extent in the debate about the weighting of votes in the Council and reinforced cooperation. The ten smaller Member States (Benelux, Austria, Denmark, Greece, Ireland, Portugal, Sweden and Finland) robustly defended the right to retain one Commissioner per country. This was non-negotiable throughout the IGC. It is bound up with the desire of all Member States to be represented in the supranational Institution par excellence and demonstrates both the mistrust of each country for all the others and hence the persistence of national policies in European integration and the importance attached to the Community executive.29
The larger Member States (France, Germany, Italy, Spain and UK), on the other hand, argued vigorously for an upper ceiling of 20 Commissioners and a rotation system. In this respect, Italy, which was more attached to the principle of the equality of the partners, defended a rotation for everyone, whereas Spain insisted that rotation would apply only to the smaller states. None of the large countries was willing to concede its second Commissioner if a "one Commissioner per Member State system" were introduced.
The intermediate position supported by the Commission and the European Parliament, whereby there would be a transitional period up until 2010 when all Member States would be represented in the Commission and the problem would be sorted out after this date (differential ceiling), cannot hide the underlying intention to pass on the costs to the applicant countries. Given that most of these countries are small, the split between large and small states still applies.
The same split is apparent in the discussion about the equality or hierarchy of Commissioners, but less evident on the subject of granting more powers to the President and increasing the number of Vice-Presidents. If the rotation system were to be adopted, all the small countries, supported by Italy, wanted strict equality in the conditions of rotation, so that each Member State would be deprived of representation in the Commission for the same length of time. The larger Member States replied that this would constitute reverse discrimination unless other arrangements were made to compensate for their under-representation in the Community executive.
In this context the possibility of introducing a hierarchy of Commissioners was considered (junior and senior Commissioners), with the obvious but undeclared intention of earmarking the most important posts for the larger Member States. The larger Member States (with the exception of Italy) would envisage this option in the event of a failure to adopt differential rotation, whereas the smaller states rejected it outright. Most extreme of all the large countries, Spain would contemplate this possibility only on a non-egalitarian basis; in other words, one that offered comparative advantages to the larger Member States.
On the eve of the Nice Summit, the only indirect compensation that could count on wider support, but was not on a discriminatory basis, seemed to be the appointment of several Commission Vice-Presidents. The proposals varied from 4 to 6 (compared with the current two), but it was clear from the numbers mentioned that these posts would probably be intended for nationals of the larger Member States. And if these Vice-Presidents were assigned tasks coyly referred to as involving the coordination of the main fields of Community policies, then we are not all that far from a hierarchy among Commissioners according to the importance of the country.
Strangely enough there was virtual unanimity on increasing the powers of the Commission President. I have the feeling, however, that the small countries saw this as an affirmation of a powerful supranational executive, traditionally closer to their interests, while the larger Member States possibly saw it as a means of controlling the Community executive more effectively. In any multilateral negotiations involving several different parties, it is not uncommon to find such points of convergence, but one should always be aware of the motivation of the various protagonists, who may disagree as to medium- and long-term objectives, but have converging opinions regarding the immediate means to be adopted.
This divergence of longer-term objectives is illustrated by the differences as regards the inclusion in the Treaty of the President's power to dismiss a Commissioner (the Prodi clause) and the Commission's right to request a vote of confidence from the European Parliament. Although there is not the same clear division between larger and smaller Member States, the larger ones (again with the exception of Italy) are clearly more reluctant than the smaller ones, which partly supports the idea expressed above as regards longer-term objectives, the smaller Member States being generally more integrationist than the large ones.
The same situation is to be found mutatis mutandis in the lively debate about the weighting of votes in the Council. The two important parameters here are the percentage of the population and the level of the majority of the States. Everyone seemed at first to accept that if the larger Member States were to be compensated for the loss of a seat in the Commission, this would have to take the form of a fairer reweighting of the qualified majority (Commission and weighting of votes). The reason for this was that a linear extrapolation of the current system could lead to situations that broke the most elementary democratic rules for the larger Member States, which would find themselves compelled to accept decisions taken by a group of states representing a minority of the European population and to renounce plans that were supported by a majority of the population but opposed by an effective blocking minority consisting of a small, but sufficient number of states. Hence the general willingness to change the system. But how?
There were two main options: the first proposing a dual majority (Member
States + population), was backed primarily by the small countries, supported by
Germany and Italy; the second, modification of the current system, was backed
by the three other large countries plus Sweden, with the Netherlands receptive
to any realistic and effective proposal. But what is interesting here is not so
much the system proposed as the percentages mentioned: it is hardly surprising
that the larger Member States set a higher threshold for the two parameters
(around 70%), while the smaller countries would prefer decision-making with
around 50% support. Clearly, each group is trying to maximise its relative
weight in the decision-making process.
But the reality appears to be more complicated: in the Commission, the figures are more important for reasons of the effective functioning of the institutions (for the final decision a simple majority of Commissioners is enough); in the Council, because of its legislative powers and the extension of areas to be decided by qualified-majority voting, the level of votes needed for the final decision can have a profound impact on the fluidity of the decision-making process. Obviously, the closer we remain to the 50% figure (advocated by the Commission+smaller Member States) the easier legislative decisions become, whereas the closer the percentage gets to 70% (the figure favoured by the larger Member States) the more tortuous the decision-making process becomes. The Commission's proposal appears to be closer to the demands of the smaller Member States, not from ideological choice but rather because this makes the negotiations on its proposals in the Council easier and increases the likelihood of finding a sufficient majority to support them. I am not sure that the larger Member States have thought carefully enough about the consequences of slowing down the decision-making process. This favours the preservation of the legislative status quo, which, to some commentators, enhances the margin of discretion of the executive (the implementing rules become more important) and the judiciary, which will tend to a more sustained form of activism because there is less likelihood of being overruled.30
If this assumption is correct, and without being in a position to say whether the choices are deliberate or accidental, it would seem that the smaller Member States and the Commission are in favour of a model of integration based on majority decisions in the Council, whereas the larger Member States, intentionally or otherwise, propound a form of integration propelled by bureaucrats and the courts.
The significant extension of qualified-majority voting was the key criterion on which to judge the success of the IGC. The Portuguese and above all French Presidencies insisted heavily on this point. The result was that all Member States, from the start, declared themselves willing to contemplate it in principle, recognising the urgency resulting from enlargement. But there is not a single Member State (with the possible exception of Belgium) that supports qualified-majority voting on all issues without exceptions. Added to this the fact that the specific objections of the different Member States relate to different areas of Community action, and the list of exceptions already becomes too long. There is in any case a broad consensus in favour of retaining unanimity for the provisions concerning institutional balance, foreign policy and particularly sensitive domestic policies, many of them covered by the third pillar (immigration, refugees) but some outside it (taxation, social security). The smaller Member States also want to maintain unanimity for the management of the Structural Funds.
Despite the range of initial differences, significant progress was made in the negotiations, with all Member States moving slowly but surely towards less rigid positions, with the possible exception of Denmark (which had been expected) and Spain (which was more surprising). By dividing the articles in question into a core group that would remain subject to unanimity and other aspects that might be transferred to qualified majority, it was possible to achieve some advances even on provisions relating to visas, asylum, immigration, social security and taxation.
As explained above, the extension of qualified-majority voting was solely in the direction of facilitating the legislative process, meaning that the Council increases its weight in the decision-making process, particularly as the European Parliament does not have the means to speed up its own deliberations and exercise its power of co-decision more effectively.
Significantly, there is much less enthusiasm for a corresponding extension of the co-decision procedure. Even Member States, like the Netherlands, which are strongly in favour of the extension of qualified-majority voting, are reluctant to proceed to an equivalent extension of co-decision, preferring a case-by-case approach, as favoured by Spain and Denmark, but also Ireland, Austria, Sweden and Germany. In the case of Germany, each area has to be examined separately in order to respect the prerogatives of the Länder.
It is safe to say that all Member States are ultimately more in favour of the extension of qualified-majority voting in the Council than a parallel extension of the co-decision procedure. They have greater confidence (at least as regards matters of vital national interest) in quasi-intergovernmental negotiations (despite the progressive removal of the veto) than in a supranational process which is partly out of their control.
This attitude is comparable to that towards encouraging the creation of genuine European political parties via the election of a number of MEPs at the EU level, and the provision of funding from the Community budget. Only the Commission and Italy support such a scenario. In the current situation, governments find it easier to gain partisan support in a European Parliament elected at national level, even without clear majorities, than in a European Parliament that might develop independent political views that might be different from the national political balance.
Apart from that, all Member States agree on the ceiling of 700 MEPs, although the distribution is more controversial, particularly for the smallest Member States, which are afraid of losing much of their relative importance in an assembly with greater powers.31
On the question of the judicial system and the composition of the other Institutions, the divisions are not very marked. In general, the smaller Member States favour one judge per country for the Court of Justice, Court of First Instance and Court of Auditors. Federal countries with highly developed regional organisations are more concerned about the prerogatives of the Committee of the Regions (Germany, Belgium, Italy, Spain) and countries with a well-developed civil society have a particular affinity with the Economic and Social Committee (Finland, Sweden, Denmark).
Another important area as regards the balance of power and the constitutional future of the EU was that of enhanced cooperation. Unlike the other areas discussed so far, the split between smaller and larger Member States did not apply here. Although all agree that the idea is of interest in a less homogeneous EU, those unreservedly in favour of the Commission's proposals are three large states (France, Germany, Italy) followed by the Benelux countries. It is no coincidence that it is the six original founding members who are comfortable with the idea of taking cooperation further. The other smaller countries plus Spain and the UK are more reluctant. This opposition is a heterogeneous coalition comprising certain countries that are worried that they will be unable to keep up and others that could but do not want to take cooperation any further, particularly in areas where they hope, rightly or wrongly, to retain full national sovereignty.32
The position of certain small countries shifted in the course of the negotiations (this was particularly true of Greece, which had by now fulfilled the convergence criteria and joined the EMU) as they opted to take up the challenge of joining the frontrunners more quickly rather than be relegated to a category that would soon contain only most of the countries applying for membership.
All of the applicant countries should be grouped with the smaller Member States, not only because most of them are indeed small or medium-sized, but above all because they feel threatened with being forced to accept a body of Community law drafted with a view to their accession to the EU but in the negotiation of which their impact was marginal or even nonexistent. This fear is particularly marked as regards the mechanics of voting in the Council, the composition of the Institutions, and the budget contribution, the essential condition for maintaining an elementary notion of economic and social cohesion which these countries will desperately need. Without exception, all insist on one Commissioner per country and fair and balanced representation in other areas. On the matter of enhanced cooperation, however, they are divided: the Czech Republic and Bulgaria are in favour, Poland and Cyprus more reluctant, while the other applicant countries have not expressed any firm views.
Slowly but surely we are seeing the emergence of an avant garde of countries that sincerely want to form a strong and coherent supranational entity that would be more effective in shaping the common destiny in a globalised world, and a second group, lagging behind, still prizing their sovereignty as a useful means of dealing with at least some of the questions raised.
This quasi-constitutional split was also apparent in a series of subsidiary issues tackled by the IGC. The main issues here were the reorganisation of the Treaties, the Charter of Fundamental Rights and whether or not it should be binding, the parallel discussion on the creation of a European military capability, the insertion of a "democratic clause" in the Treaty, the clarification of the hierarchy of norms in Community law and the specific legal base for the delegation of regulatory power and, finally, the debate on the future of the Constitution of the EU.
The discussion on the reorganisation of the Treaties was based on a study by the European University Institute conducted by a team of high-ranking legal experts coordinated by C.D. Ehlermann and Y. Meny.33 The study proposed that the Treaties be merged into a single text divided into two parts, the first constitutional, the second dealing with the common policies. The Council should be given the right to amend the second part by qualified-majority vote and the constitutional part by unanimous vote. The Commission accepted the merit of this approach in terms of readability and transparency and proposed that the IGC undertake to deal with the issue in the near future. The European Parliament and the Committee of the Regions also agreed to this approach, but no country showed any enthusiasm for the proposal. France, Germany, Italy the Benelux countries and Greece suggested that it might be possible to think about in a future IGC; Finland, Ireland and Portugal remain rather hesitant, while the UK, Spain, Denmark and Sweden have expressed definite opposition to the proposal. For these four countries anything which smacks of even partial constitutionalisation is dangerous.
The debate on the Charter of the Fundamental Rights of the EU focused on a draft prepared by a broad-based committee containing representatives of governments and national parliaments, the European Parliament, the Commission and the Council. The applicant countries were consulted on the content.34 The draft Charter was approved on 14 October 2000 at the informal summit in Biarritz. This political text consists of 54 articles that embody the common values on which EU members will base future integration and to which future members will have to subscribe. The Charter could ultimately be incorporated into the Treaties or into a future European Constitution. On this point, only Belgium, Italy and Germany clearly called for it to be legally binding. Germany even suggested that the Nice European Council agree on a procedure of adoption by referendum at the same time as the European elections, while Italy suggested that as a first stage the Charter should be included in a special protocol to be annexed to the Treaty, with a view to using it as the core of a future European Constitution. All the other Member States wanted the Charter to remain a political instrument, with Finland arguing for the EU to accede to the European Human Rights Convention. Regardless of one's view of the value and effectiveness of such a document,35 the two camps of Member States were clearly discernible here, too.
In the light of the recent experience with Austria, the question of the consequences that should be attached to any infringement of democratic values by one or more Member States played a disproportionately large part in the discussions, several countries (e.g. Austria, Belgium) having presented practical proposals for amending Article 7 of the Treaty on Economic Union alongside the Commission's proposal on the matter. The majority of Member States were open to the possibility, but the UK, Denmark, Sweden and Finland all had reservations about amending the Treaty on this point. This may be seen as yet another example of the rejection of any initiative that might have constitutional implications, however, minor.
It is hardly surprising that in this context the proposals on the establishment of a clearer hierarchy of norms in Community law, by defining the area of law and delimiting it in terms of executive powers, caused considerable confusion. The Portuguese Presidency presented a suggestion for amending Article 249 to introduce a definition of the new concept of legislative act. While delegations acknowledge the existence of the problem as part of a broader debate on the hierarchy of norms and the value of trying to address the balance between regulatory and executive authority in the Treaty, serious concerns were expressed that the suggested approach could give rise to difficulties of interpretation and implementation. If this approach were to be pursued, further clarification would be needed from the IGC's legal advisers in the light of this discussion. Only the European Parliament strongly defended such an amendment, anticipating a possible increase in the scope of its legislative prerogatives. This important question was therefore postponed indefinitely. This attitude can only be explained as a reluctance to share regulatory power, both the Commission and the Member States being afraid of losing some of their control over the EU's legislative output.
The same situation can be seen with the introduction of a new legal basis to allow the delegation of regulatory powers to independent administrative authorities (agencies), particularly in highly technical areas or areas calling for advanced scientific expertise, subject to conditions significantly limiting the scope and discretion this type of body would be allowed. The original proposal for an amendment of Article 308 to this effect36 quickly foundered on the universal scepticism of the delegations and was finally buried by President Prodi himself who, in a speech to the European Parliament on 3 October 2000, expressed fears about the possible fragmentation of the decision-making process. Evidently Mr Prodi's fears were related more to the proposals coming from the UK (and France) at the time for the creation of High Representatives in many areas outside the Treaties (particularly for the management of economic and monetary policy, to accompany the one that already exists for foreign policy), but the danger of fragmentation also swept away the agencies which could have made a very useful contribution to the more efficient and democratic exercise of regulatory power.37
In the parallel discussion on the creation of a European military capability, it is important to remember that the original initiative dates back to an Anglo-French proposal,38 which at first sight might seem paradoxical. Such a proposal would indeed represent a major advance in European political integration in the most sensitive of all areas, the armed forces. But when looked at more closely it becomes clear that France was reviving its ambition to become an international military power and Community leader in this field, while for the UK this was the area where it was most keen to assert its European credentials, while at the same time locating the initiative in a context of intergovernmental and trans-Atlantic cooperation, still its preferred model for future Community integration.39
Finally, we should mention here that all Member States expressed their support for a proposal to amend Article 151 to emphasise the need for the Community to take account of cultural diversity when implementing its policies. The instinct to defend national differences remains strong.
In addition to these important, but specific issues, a more general debate took place sporadically at the IGC concerning the constitutional future of the EU. The foundations of this debate were laid by President Chirac in his speech in Berlin on 27 June 2000, by the joint declaration issued by Chancellor Schröder and the Italian Prime Minister Giuliano Amato on 21 September 2000, by the speech by the Belgian Prime Minister Guy Verhofstadt on the same day, and by the recent speech in Warsaw by the British Prime Minister Tony Blair, on 5 October 2000, the themes of which were taken up in several speeches by Spanish politicians.
Jacques Chirac advocated the creation of a group of pioneers to start work next year on coordinating economic policy, strengthening defence and security policy, and improving measures to tackle international crime. He had in mind here cooperation outside the Treaty framework, by creating a Secretariat to harmonise the positions and policies of the members of this small but not exclusive group. This would require a new treaty setting out the constitutional arrangements and, in particular, a clear division of powers between the EU and the Member States. France's position is that a plan and a timetable for tackling these issues should be established as soon as possible after Nice.
Responding to this call, Mr Schröder and Mr Amato, while not disputing the merits of the debate, preferred to place it in a much more Community-oriented context. They advocated the launch of a wide-ranging constitutional debate immediately after Nice to tackle the question how power is shared between the EU and its Member States, to incorporate the Charter of Fundamental Rights in the Treaty and clarify the distribution of responsibilities between the European Institutions. Given the advances made in European integration, Europe's citizens have the right to a readable and transparent Constitution. A public debate should be conducted throughout Europe, including the countries applying for EU membership, and could culminate in a major conference in 2004.
Mr Verhofstadt then entered the fray on behalf of the Benelux countries, with a speech evocatively entitled "a vision of Europe", in which he pleaded for the Community approach in an updated form that satisfied the demand for transparency, efficiency, legitimacy and the need to set a final objective. He also proposed a wide-ranging European constitutional debate that would include the candidate countries, and suggested that the 15 adopt a declaration at Nice which would launch this debate and outline the final goal of Community integration.
Worried by these developments, Mr Blair proposed an intergovernmental model for the EU, though he referred to specific points in the other leaders' speeches. The British Prime Minister stipulated that the candidate countries should participate fully in the next IGC (a maximalist position which barely conceals the ulterior motive of sabotaging the conference) and sketched the outlines of a future constitutional reform, supporting the idea of a political declaration of principle on the distribution of power. This text would not be a formal constitution, but a dynamic tool that would allow for a gradual revision of the Treaties, overseen by a second chamber of the European Parliament, composed of national MPs. This European Senate would also be responsible for the democratic control of the common foreign and security policy, given that the role of the High Representative would be enhanced, while the European Parliament would continue to scrutinise the legislative activities of the EU. Finally, the European Council, with the participation of the Commission, would set an annual agenda for the EU.40
Coming from the UK these ideas are hardly surprising, but what is more curious is that they have found enthusiastic support among the Spanish leadership. Both the Prime Minister, Mr Aznar, and above all the State Secretary for European Affairs, Mr Ramon de Miguel, stated that the 15 should concentrate on priority challenges instead of being carried away by "vision politics", because the mania for constitutional development can only lead to error. They expressed open hostility to the federalism advocated by the Germans, Italians and Belgians and even had some reservations about the French proposals.
This brief outline of the constitutional positions indicates a shift in the traditional coalitions within the EU: the Franco-German axis, already shaky in Amsterdam, is no longer working. Even more serious is the fact that one can detect the seeds of a leadership struggle between the two driving forces in Europe. The Germans are trying to assert their hegemony, having failed to do so at the outset. This is now becoming increasingly apparent following reunification and the removal of the last vestiges of the war, and will be strengthened by enlargement to the East, an area traditionally crucial to German interests. The French, by contrast, are desperately trying to preserve an at least equal role in this new balance of power.
A new pro-Community axis is emerging, prompted by Germany (with its leadership ambitions) and supported by Italy, the Benelux countries and a number of other smaller countries. Conversely, an anti-Community front, led by the UK, supported paradoxically by Spain (which has apparently exhausted the benefits of the cohesion policy) and naturally by the majority of Scandinavian countries which traditionally distrust supranational integration and prefer a sort of superior free trade area.
France, shaken by the threat to its traditional leadership and preoccupied with the defence of its own interests, seems to be playing the role of intermediary. This may be a temporary phenomenon, probably linked to its role as host country for the decisive European Council and to the conflicts inherent in cohabitation,41 but its constitutional ideas tend more towards the UK view than the German one.
Despite the conciliatory statements by Chancellor Schröder at the Franco-German summit in Hanover on his determination to make a success of Nice, observers could not help noticing that he took a malicious delight in reminding President Chirac that the host country has to make the most concessions and recalling the unhelpful positions adopted by France at the Cologne European Council at the very beginning of his government's term of office.
It was against this background that the Nice Summit opened on 7 December 2000 and on the basis of these premises that it produced the results we shall discuss below.
5 See Neil Kinnock's Communication, in agreement with the President, on Reforming the Commission, 1 March 2000.
6 "Thoughts on the finality of European integration". Speech at Humboldt Universität Berlin, 12 May 2000.
7 See, among others, Jacques Chirac: "Our Europe", speech to the Bundestag in June 2000, and Carlo Azeglio Ciampi's speech when accepting his honorary doctorate from the University of Leipzig on 6 July 2000.
8 Michel Petite: Le traité d'Amsterdam: ambition et réalisme. Revue du Marché Unique Européen, vol.3, 1997, p.17-52.
9 Initiative relaunched by the joint Amato/Schröder declaration, see below p. 35 and 57-58.
10 On 1 September 1999 the President-designate, Romano Prodi commissioned Mr Dehaene, together with Richard von Weizsäcker, the former German President, and Lord Simon of Highbury, former chairman of British Petroleum and one-time government minister in the UK, to produce an independent opinion. Their terms of reference did not include the formulation of specific proposals; they were asked simply to identify the institutional problems that would have to be resolved and the reasons why they had to be considered by the IGC. Although the formal request came from the Commission, the idea of a report by three "wise persons" as a preparation for the IGC came from the Council, which in one of the first documents circulated among the delegations suggested that "the aim could be for a report to be made by these persons ... which could serve as a basis for negotiation ... notwithstanding further proposed solutions..." Council document SN501/99, 10 May 1999. This perfectly illustrates the vacuum created by the resignation of the Commission.
11 This report, "Adapting the Institutions to make a success of enlargement", was a precursor to the Commission's opinion. Though it ostensibly covered a broad range of issues, it in fact proposed a restricted agenda. It identified three major challenges to the future of the EU (functioning properly with a large number of Member States, preventing any watering-down of the Union, and continuing with the political construction of Europe), but concluded that the IGC should concentrate on institutional matters. The report concentrated on the unfinished business of Amsterdam, adding only the idea of reorganising the treaty texts, borrowed from the Dehaene report. The Commission's contribution merely referred to the themes of closer cooperation and further development of European defense on the basis of the current discussions. The Commission concluded by announcing that its formal opinion would be in the spirit of this initial report.
12 "A basic Treaty for the EU. A study of the reorganisation of the treaties", Working group coordinated by C.D. Ehlermann and Y. Meny. See also, the Commission's reaction (COM (2000) 434 of 4 July 2000) which concluded that it was not realistic to expect the present IGC to carry out this exercise. Given the importance of the issue, the Commission intended to refer it to a committee of top lawyers representing the Member States and the Institutions, with a view to producing a draft for submission to a future IGC.
13 This resolution was rather formal. The substantial one was issued later, on 14 April 2001. See, below p. 23-24.
14 Michel.Petite: Le traité d'Amsterdam..., op. cit., p.24.
15 All this material can be consulted on the Interinstitutional website: http://europa.eu.int/igc2000
16 This contribution drew heavily on the working party on the future of the EC's court system, chaired by the former judge and President of the European Court of Justice, Mr Ole Due, which was presented to the Commission on 4 February 2000.
17 See doc. CONFER 4747/00, 31 May 2000.
18 See "Intergovernmental Conference on institutional reform". Presidency report to the Feira European Council, Brussels, 14 June 2000, doc. CONFER 4750/00.
19 Presented to and endorsed by the Biarritz Summit. See below p. 50-53.
20 See the progress report on the IGC on institutional reform, doc. CONFER 4790/00.
21 See for example, doc. CONFER 4743/00, 19 May 2000.
22 22 It may not apply to areas of exclusive Community competence, there must be no discrimination among European citizens or restrictions on intra-community trade, it is subject to control by the Commission and review by the Court of Justice, open to all Member States wishing to join and subject to a veto by the Member State referring the matter to the European Council for unanimous decision
23 The Council is not included in this section. The European Council, which must act unanimously in order to amend the Treaties, is the ultimate manifestation of the intergovernmental working of the Council in its most senior configuration (Heads of State or Government). The position of the Council within the IGC must therefore be considered in the context of the position of the Member States.
24 COM (2000) 34.
25 See text adopted on 1 March 2000.
26 COM (2000) 608 final, 29 September 2000.
27 These questions cover the practicalities of the internal organisation (chambers) of the Courts, the exact nature of the extended competencies of the CFI, the creation of specialised bodies, and the number and role of the advocates-general.
28 Michel Petite: The Commission and the Amsterdam Treaty. Harvard Law School, Jean Monnet Chair working papers, 1998. www.jeanmonnetprogram.org
29 It seems that the climate at the Biarritz summit deteriorated badly when President Chirac, backed by Chancellor Schröder, raised the question, only to be attacked by the Luxembourg Prime Minister, Mr Juncker, who recalled that the EU was founded precisely to separate these age-old adversaries and that sooner or later they would need the small states once again to settle their differences. The Dutch Prime Minister, Wim Kok, then felt compelled to defuse the tension by saying that for him there were two certainties in life: death, and the fact that each Member State has one seat in the European Commission.
30 Georges Tsebelis and Geoffrey Garrett: The Institutional Determinants of Intergovenmentalism and Supranationalism in the EU. July 2000, paper to be published in International Organization, vol.55, no1, 2001.
31 Luxembourg, for example, is insisting on retaining its six MEPs on the grounds that all the political currents in the country could not otherwise be properly represented.
32 It was the same with EMU: Greece wanted to join but could not because of the convergence criteria, whereas the UK, Denmark and Sweden satisfied the criteria but did not want to join.
33 See above, p. The Commission expressed its support in the Communication from the President and Mr Barnier "Towards a fundamental Treaty for the European Union", COM (2000) 434, 4 July 2000.
34 See Council-Charter 4390/00 CONTRIB. 249, 27 June 2000 on the hearings with the candidate countries on 19 June 2000.
35 See below, p.
36 See doc. CONFER 4711/00, 22 February 2000.
37 X. Yataganas: Delegation of regulatory authority in the EU: the relevance of the American model.Harvard Law School, Jean Monnet Working Papers, 2001. www.jeanmonnetprogram.org Forthcoming.
38 The idea of a common European defense (echoing the CED that failed in 1954) was launched at the Franco-British summit at Saint-Malo. December 1998.
39 This approach has been criticised recently by Mrs Thatcher, who dismissed the European military capability as "a foolish idea".
40 These ideas were widely reported in the British press. See The Economist's editorial of 26 October 2000, entitled "Our Constitution for Europe".
41 See P. Moscovici in Le Monde, 28 November 2000.