Jean Monnet Center at NYU School of Law

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B. Main institutional issues

The priority issues were easy to identify: they were two; on the other hand, the most pubicly debated one was viewed as overevaluated.

1- Firstly, the need for an efficient decision-making, particularly in view of the coming very significant enlargement, pointed at a maximum use of QMV in the Council, and as residual a role as possible for unanimity.

The Commission took a maximalist position at the outset, drawing on the mathematical equation that the difficulty of a unanimous agreement arises exponentially with the number of members to the decision: at 30, it would not be twice more difficult than at 15, but in the area of 40 million times more difficult!

If such was the case, even amendments to the Treaty would become improbable in the future, at unanimity. There was therefore a case for doing away with unanimity altogether.

This was clearly shooting too high.

Nobody could envisage anything else than unanimity for Treaty amendments, even for amendments to provisions of a trivial regulatory nature, which abound in the Treaty.

Also, the Ministers of Finance rallied together to maintain unanimity for all fiscal matters - including these ministers with objectively the least to gain from it, and including those fiscal matters which have more to do with an internal market than with the national budgets: for example, doing away with the still existing areas of double taxations for businesses established in more than one Member state; or for some issues of indirect tax which are already highly harmonised but now prove impossible to improve or simplify due to unanimity.

No doubt that many will agree that the modest result of Amsterdam in increasing the majority voting in the Council, is its really disappointing outcome, and an unfriendly Damocles' sword for the future.

2- The second institutional priority could be heard from many sources: it was a call for a more democratic functioning of the institutions.

It did not come only from the European Parliament, but also from almost all Member States, from the Constitutional Court of Germany, from all sorts of Non-Governmental Organisations, from simple good sense; and from the Commission: it was absolutely clear for anyone who could see, that a pre-condition to any extension of the Community order, was to have a more proper and classical democratic system. Failing this, we were undoubtedly to face major constitutional problems in Member States, and eventually bring the European construction to a halt.

This was mostly achieved in the Treaty through a very profound review of the role of the European Parliament in its legislative capacity; more precisely, by the very wide extension of the co-decision, by the removal of the so-called "unfair" 3rd reading, and by provisions on a "transparent" governance.

The Commission supported and sometimes engineered the above solutions (see its document of... on the extension of the codecision procedure). In doing so, one precaution was necessary for the Commission: that its monopoly of legislative initiative, from which much of its political power derives, would not be endangered. Otherwise, the general balance between the three political institutions would be profoundly altered.

On the whole, this power of initiative of the Commission was nevertheless never really disputed (despite some efforts from Germany), for two main reasons:

* the Parliament was wise enough not to request any such power of initiative. It knew that if it did, so logically would the Council. The result would be a drastically weakened Commission under the present balance of powers. A proper and distinct right of initiative for the legislative Chambers would only be logical if and when the Commission would be conferred proper and full governmental powers.

* more generally, during the Amsterdam negotiation, and in sharp contrast with the Maastricht one, the Commission did not come as such under attack; or when it did, always found an overwhelming support.

Part of the reason for this might have been that many Member States took issue of the abrasive way in which some large States approached the question of their representation in the Union (the larger v. smaller member States question). And they concluded that their best protection against a "directoire" of a few large countries, lied with a strong Commission. They further obviously concluded that if this was the case, they also had better insist in each having a commissioner in the Commission..

3- In contrast with the two previous questions, the Commission took the view that the two most mediatic institutional issues, namely the number of Commissioners and the reweighting of votes in the Council, were grossly over-evaluated.

* several large Member States made the reweighting of votes a top priority. It made some sense in the context of an enlargement which, consisting mainly of small States, will have the mechanical effect of diluting proportionally more the representation of the large States. This issue will be very familiar to our American colleagues here; in the debate on the US Constitution, a "Federal Farmer" protested: "How unreasonable, and unjust, that Delaware should have a representation in the Senate, equal to Massachussets or Virginia? The latter of which contain ten times her numbers, and is to contribute in that proportion?". And James Madison confirms in a great letter of November 1787 to Thomas Jefferson , that "this issue created more embarrassment, and a greater alarm for the Convention, than all the rest put together".

Indeed, in the case of our larger European Member States, they sometimes presented their position in a abrasive way, and soured the issue which naturally deteriorated in a conflicting political one.

But strangely enough, whatever voting formula is retained in the next IGC, it will probably not drastically change the present landscape: it was worked out that none of the formulas envisaged in Amsterdam would have produced any change in any of the decisions adopted by the Council over the past three years (which was the period tested).

The question of the number of commissioners is a more serious one, and the case seems strong for slimming down the Commission. But it finally appears that it could only be a matter of whether the large Member States retain or not a second commissioner: in other words, whether at 20 member states, there will be 20 or 26 commissioners. This is important, but decidedly not fundamental.

It would have been another matter if the tempting idea put forward by France of a "managerial" Commission, with much fewer commissioners than Member States, had gone some way. But it proved unacceptable to almost everybody:

- unacceptable to the new members (Sw, Fin, Austr.), because they had only just emerged from ratification debates where the fact of appointing their own Commissioner played an important role which they could not go back on;

- unacceptable to the smaller States, because they suspected that any missing commissioners would be their commissioners;

- and finally, unacceptable to Germany and UK, if it implied that they could have at one time no commissioner. In fact, it was only acceptable to them if they were assured of a permanent seat in the Commission, while others would rotate. A kind of U.N. Council of Security system, which not many were prepared to envisage.

4- Finally, the Commission submitted the case of strengthening the role of its President. This was seen as necessary regardless of whether the number of Commissioners were altered. There was a relatively easy agreement on two main improvements:

* the fact that he would have a much greater say in the appointment of the Commissioners, because he would have to agree on them;

* the fact that he will be able to allocate and reshuffle their portofolios much more easily.

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