Jean Monnet Center at NYU School of Law

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An explanation mark followed by a question mark ? Is this an affirmation or a question or both ?

To us institutionalists it might seem self-evident that an intergovernmental conference (IGC) and its product is about shifts in the interinstitutional balance. What else could it be?

Yet there are two objections:

-the first is that IGCs have political rather than institutional objectives. The Single European Act (IGC 1985/6) was about the internal market, the Maastricht Treaty (IGC 1991/2) about economic and monetary union, the single currency, the Amsterdam Treaty (IGC 1996/7) was intended to fill in the gaps in Maastricht and became the text which integrated employment and the social protocol. This is not such a strong objection because interinstitutional developments can occur even if they are not among the prime objectives, ranking as by-products of an IGC;

-the second objection is of a different character. It comes from the mandate for the last IGC formulated by the Turin European Council to launch the negotiations. The conclusions of the presidency explicitly include in the mandate the phrase: " ... respecting the balance between the institutions ... ".

Now we know why the explanation mark is followed by a question mark. And there is also a first conclusion: either there is no shift in the interinstitutional balance - in this case we, the institutionalists, would be very surprised - or the IGC has failed with regard to the obligation contained in this part of the mandate - should we add: as well ?

What kind of sentence is it anyway that prohibits changes in the interinstitutional balance? Is it just a drafting slip? Knowing how bitter the fight on any comma in the text of the presidency conclusions of European Councils is, or at least can be, it can be excluded that it is a drafting slip. Was it seriously the wish to avoid interinstitutional developments? This as well can be excluded. It would be in flagrant contradiction with other elements of the mandate (widening the scope of codecision procedures, increasing the efficiency of Council and Commission ...). And it would seem naive. What is it then? I think we have to consider it as a negotiating device introduced for use during the IGC as a brake where any undesirable development threatens to occur; to be invoked by whoever seems to be short of arguments or power.

This having been said, we can move on to the underlying question: what shifts in the balance can be observed? Given that we are still in the ratification procedure, awaiting Amsterdam's entry into force, this seems to be either a non-starter, because there are no shifts yet, or a game of speculations and expectations. But this latter alternative, is it not the more interesting, the more challenging anyway? The club of institutionalists enjoys this game: 'homo ludens' is certainly well represented in this club.

To avoid mere speculation, I will try to broaden the base by introduction of developments known and described since the seventies. We might be able to find tendencies that could be extended into the future. We might find accelerations or losses of speed. We might even find contradictions and paradoxes.

Before I move to this exciting exercise, I will restrict myself. I shall deal only with developments concerning the three political institutions: the Council, the Parliament and the Commission. As far as the Court of Justice is concerned this would be a different story, even if it is certainly fascinating. The development of the Court merits to be highlighted more in relation to the member states than to the other institutions. With regard to Court of Auditors the argument would become too technical (and I would not be the person to say much about it). With regard to the European Central Bank it would only be a description of the interinstitutional haggling and cooperation which accompanied the birth of the institution. It would be premature.

Following all these restrictions, one enlargement of the subject: I shall not only consider the relations between the three institutions and their development but as well the relation to the member states. One - but not the only - reason is their role as draftsmen of the Treaties, the authors of a constitution in the being (or to be).

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