The Jean Monnet Program

Professor J.H.H. Weiler
European Union Jean Monnet Chair

Jean Monnet Working Paper 1/01

Xenophon  A.  Yataganas

The Treaty of Nice
The Sharing of Power and the Institutional Balance in the European Union—A Continental Perspective

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The Jean Monnet Working Papers are published under the auspices of the
 Jean Monnet Program 
hosted at Harvard Law School from 1995 to 2001
and now based at New York University School of Law

ISSN 1087-2221
 Xenophon  A.  Yataganas

THE TREATY OF NICE
THE SHARING OF POWER AND THE INSTITUTIONAL BALANCE IN THE EUROPEAN UNION—A CONTINENTAL PERSPECTIVE*

Dr.  Xenophon  A.  YATAGANAS*

*  A draft of this paper was presented to the Jean Monnet Seminar on the European Union, NAFTA and the WTO: Advanced Issues in Law and Policy, at Harvard Law School, the 22d of February 2001. I thank Professor J.H.H.Weiler and the participants to the Seminar for their very useful criticism and comments.
*	Legal Advisor in the Legal Service of the European Commission. Fellow,     Weatherhead Center for International Affairs and the Center for European Studies at Harvard University. The views expressed in this article are strictly personal. I am indebted to the European Commission and to the WCFIA for their financial and intellectual support. Special thanks to my colleague Pieter Van Nuffel, Head of the Commission’s Task Force to the IGC for reading the draft and making several very helpful comments and to my research assistant Leonid Peisakhin, Harvard College student, for helping me to summarize the positions presented during the negotiation procedure. I also wish to thank Donald Halstead, the WCFIA Fellows Program editor, for working with me on this paper.

                                          TABLE OF CONTENTS

Introduction

Successive Intergovernmental Conferences
Amsterdam's unfinished business
Nice

A.  The environment and the players

1.	Background and agenda 
2.	Preparatory work and technical progress
3.	The main issues
4.	The Institutions’ positions
5.	The positions of the Member States and applicant countries.

B.	The new Treaty

1.	Extension of the co-decision procedure and qualified-majority voting
2.	Weighting of votes in the Council
3.	Composition of the Commission and it’s political accountability
4.	Composition of the other Institutions
5.	The future of the European Union’s court system
6.	Closer cooperation and flexibility
7.	The Charter of Fundamental Rights
8.	Other issues

Conclusions

Can the new structure accommodate the next enlargement?
The European institutional architecture: Will it ever be completed?
Towards another Intergovernmental Conference

Abstract

This paper presents an initial response to the conclusions of the Nice Summit and the new EU Treaty which emerged from it. It consists of two sections: in the first I discuss the climate in which the Intergovernmental Conference (IGC) took place and the opening positions of the Institutions, the Member States and the applicant countries. This will serve as useful background for understanding what was at stake in the negotiations and the stance of the actors on the questions they either tackled or left to one side. It will also shed some light on the conditions and balance of power in the negotiations and thus contribute to a better understanding of the results achieved at Nice. 

These results are set out in the second part, with special emphasis on the themes that mark a shift of power within the Community's institutional architecture; i.e. the extension of qualified-majority voting in the Council and the co-decision procedure with the European Parliament, the reweighting of votes and the composition of the Institutions with a view to an enlargement which is both imminent and unprecedented in the history of the EU.

I conclude that while the results of the IGC and the new Treaty of Nice fall short of what is needed in an EU with ambitions on a continental scale, they do mark another stage in the process of European integration and the permanent evolution of its constitution. In this sense, the balance of power is likely to be different from what it has been in the past. The Franco-German axis has been severely weakened, the UK and Spain seem to be determined to play a central role, and the smaller countries are seeking to retain some influence over how the process works. New alliances are likely to emerge, particularly after enlargement, with Germany in search of a dominant position, France desperately trying to preserve the status quo and the UK wanting to influence the direction of moves towards integration from the inside. Nice seems to mark an interim stage in this process.

A new IGC has already been scheduled for 2004. There is no doubt that the post-Nice period will be one of transition towards a new distribution of power within the EU, sanctioned by a new, highly constitutional treaty.

Abbreviations

CFI     :  Court of First Instance.
CFSP  :  Common Foreign and Security Policy.
CMLR:  Common Market Law Review.
EC      :  European Community.
ECB    :  European Central Bank.
ECJ     :  European Court of Justice.
ECHR :  European Convention of Human Rights.
ECR    :  European Court Reports.
ECSC  :  European Coal and Steel Community.
EEC    :  European Economic Community.
EIB     :  European Investment Bank.
EMU  :  Economic and Monetary Union.
EU      :  European Union.
IGC    :   Intergovernmental Conference.
JHA    :  Justice and Home Affairs.
MEP   :  Member of the European Parliament.
MP     :  Member of (national) Parliament.
NGO  :  Non Governmental Organization.
TEU   :  Treaty on the European Union.
UK     :  United Kingdom.
WTO  :  World Trade Organization.
WEU  :  Western European Union.

References

-Michel Petite: Le Traite d’Amsterdam: ambition et realisme, Revue du Marche Unique Europeen, vol.3, 1997, p.17.
-Michel Petite: The Commission and the Amsterdam Treaty. Harvard Law School, Jean Monnet Chair working papers, 1998. www.jeanmonnetprogram.org
-J.H.H.Weiler: Federalism and Constitutionalism: Europe’s Sonderweg. Ibidem, 2000.
-George Tsebelis and Geoffrey Garrett: The Institutional Determinants of Intergovernmentalism and Supranationalism in the EU. July 2000, paper to be published in International Organization, vol.55, no1, 2001.
-Official documents and European leader’s speeches, in the interinstitutional website http://europa.eu.int/igc2000 mostly alimented by the Commission. See also the recent Nice website, www.europa.eu.int/comm/nice_treaty/index_en.htm
-European newspapers, especially The Financial Times, Le Monde and Agence Europe.

Introduction

Political agreement on the Treaty of Nice was reached on the morning of 11 December 2000, and the Treaty is officially signed on 26 February 2001. Before it can enter into force it will have to be ratified by the Member States. But if the first wave of enlargement is to take place in 2003 the new Treaty must be effectively implemented by 2002 at the latest. 

The Treaty of Nice is the fourth European treaty in 13 years. In other words, since 1987 there has been a revision of the Treaties roughly every three years. This is an indication of both the pace of change in the European Union and the difficulty the partners have in keeping up with it.

The Treaty of Amsterdam was unable to resolve the three crucial questions for the future of the enlarged Community: the composition of the Institutions and especially the size of the Commission, the weighting of votes in the Council and the extension of qualified-majority voting related to the co-decision procedure (despite significant progress made in the last area). It was therefore clear from the start that the priority of the new Intergovernmental Conference (IGC), inaugurated on 14 February 2000, would be to deal with these three issues, the unfinished business of Amsterdam, or the so-called Amsterdam’s leftovers.
 
The size of the agenda was, in this context, the first battle between the Institutions and the Member States. How much should be included in the list of items to be discussed and resolved?

The Treaty of Nice comes less than two years after the entry into force of its predecessor, the Treaty of Amsterdam (1 May 1999), at a time when its effects have not yet been completely consolidated. At the same time, the Treaty of Nice extends the Treaty of Amsterdam in areas where the latter should have offered appropriate solutions but failed to do so. The two treaties should thus be read in parallel to determine the institutional arsenal available to the EU as it enters the 21st century and the decision-making instruments it can wield to tackle the continent-wide challenges it now faces.

This paper sets out to do just this, in an initial analysis written just days after the conclusion of the IGC. It is in two parts: first we present the details of the negotiations prior to and during the IGC, examining the positions of the various actors (Institutions, Member States) on the main issues (Section A). We then comment on the results achieved in the various areas dealt with and discuss whether or not the problems have been resolved (Section B).

On the basis of this analysis we draw a number of conclusions as to the new balance of power within the EU and the likely consequences for the future of European integration when there are between 22 and 28 Member States.

We shall also consider the nature of the institutional architecture of the Community, as it emerges from the process of successive revisions of the Treaties, which are continually altering the balance between the actors in a permanent process of constitutional development.

Finally, we shall try to assess whether the new system can cope with the unprecedented enlargement of the EU and look ahead to the next stages in the process of integration.

A.  The environment and the players

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.

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 Fischer 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.

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.

1.	The background to the IGC and the size of the agenda 

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). 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).  

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:
a) the Feira European Council decided that the IGC should study the question of closer cooperation, while respecting the need for coherence and solidarity in an enlarged Union; b) the European Council also urged the Convention on the Charter of Fundamental Rights to continue its work so that a draft document could be presented at the Biarritz Summit, before Nice; and 
c) the Feira European Council also invited the incoming Presidency to continue work on the Common European Security and Defence Policy within the General Affairs Council and to submit an overall report to the European Council in Nice.

Let us now turn to the preparation and conduct of the IGC.

2. Preparations and technical progress.

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; and on 10 November 1999 the Commission adopted its contribution to the report being prepared by the Presidency for the European Council.

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. 

After these unofficial preliminaries, the Commission issued its opinion on 26 January 2000, and the European Parliament followed suit on 3 February 2000.

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. 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.

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. 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.

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.

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 Rights 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.

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. 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.

3.	Principal issues

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.

a) Qualified-majority voting and the co-decision procedure
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.

b) Weighting of votes in the Council
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.

c) The composition of the Commission
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.

d) The composition of the European Parliament
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.

e)	Closer cooperation
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 conditions. 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. 

4.	The Institutions' positions

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.

a)	The Commission
 The opinion delivered on 26 January 2000 entitled “Adapting the institutions to make a success of enlargement”, 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. 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.

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.

b)	The European Parliament
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.

c)	The European Court of Justice and the Court of First Instance
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. 

d)	The other Institutions
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). 

5.	The positions of the Member States and the applicant countries

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.

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.

 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. 

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. 

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. 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. 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, 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 effect  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.

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, 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. 

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.

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, 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.

B. The new Treaty

It proved impossible to dissipate this atmosphere of conflict before the summit opened. Despite Jacques Chirac's tour of the capitals and intense bilateral contacts between the main interested parties, differences remained as wide as ever. In particular, there was no movement on the three most controversial issues. Reassuring statements claiming there was a definite political resolve to reach substantial conclusions barely concealed the inflexible stances adopted in the various capitals, giving the Heads of State and Government little apparent room for maneuver.

Stepping up the pressure, perhaps with a view to cushioning the blow of a mediocre result or to proclaiming an unexpected victory should an opening appear at the last minute, President Prodi declared on the eve of the summit that the chances of success were mixed. Tensions ran high, made all the keener by the anti-globalisation activists who were demonstrating in force, turning Nice into a kind of rerun of Seattle.

To complete the picture, Germany and Italy, followed by other Member States, immediately announced that they were asking for a formal commitment by the fifteen Member States to convene a new IGC in 2004 to discuss the EU's constitutional problems, thus, to some extent, anticipating that the Nice summit would end in failure or at the very least yield unsatisfactory results.

On Saturday 9 December 2000, three successive Presidency papers were rejected and the summit had to be extended to run into Sunday. A number of bilateral meetings failed to bridge the gap between the different positions. It was then suggested that the question of the Commission's composition be deferred to a later date, after the accession of a substantial number of new Member States, and that the number of MEPs be increased to 738 to satisfy all sides, while discussions on the weighting of votes in the Council were completely deadlocked, France having thwarted Germany's goal of a dominant position, and the smaller countries having openly denounced their larger counterparts as seeking to form a leading cartel and reduce the smaller countries' role in the decision-making process.

However, failure would have had disastrous internal effects at a time when the euro was on the launch pad and would have undermined the confidence of the applicant countries in the integration process. Pressure was mounting on all sides.

On Sunday morning, the European Council's conclusions on the remaining items on its agenda were already on the Internet, but the compromise on amendments to the Treaty was still outstanding. The discussions were forced on through Sunday night. At that time, several leaders felt it might all end in failure. Deliverance came at 4:30 am on Monday 11 December after a marathon summit, lasting four days, the longest in history.
The outcome was greeted by the Heads of State and Government as a major victory for the European ideal and a significant step forward in the integration process, whereas President Prodi said it fell short of the Commission's ambitions. 

The press, reflecting European public opinion, described it as a vast horse-trading exercise, highlighting the conflicting interests of the main players. Several members of the European Parliament gave similar reactions. 

But everyone seemed to be relieved, including the applicant countries, for whom failure would have been worse than a bad result.

Let us now take a closer look at that result. First, however, it is important to understand that, because it is not yet known exactly when and in what order the applicant countries will join the EU, the new definition of qualified majority within the Council, as well as the new composition of the Commission and the new distribution of seats in the European Parliament are determined by the treaty of Nice for a Union of 15 Member States. The treaty restricts itself to setting out the principles and methods for changing this system as the EU grows: they are listed in the Protocoll on Enlargement and attached declarations, which establish a gentlemen’s agreement between the current Member States for their common position during the coming negotiation procedures. But the real number of seats in the European Parliament for the new Member States, the number of votes allocated to them within the Council, and particularly the qualified majority threshold applicable in the future, will all be legally determined in the subsequent accession treaties.

1.	Extending the co-decision procedure and qualified majority voting

The French Presidency had made substantial progress in this field, which was one of the keys to the success of the IGC. Its efforts were not entirely misguided either, as this issue turned out to be less complicated than the composition of the Commission or, especially, the weighting of votes in the Council.

The IGC's task here was to distinguish between policy areas where decisions can be taken by qualified majority voting and others which cannot be developed without the agreement of every individual Member State. In this respect it soon became obvious that provisions could be divided into two groups: of the 75 remaining cases where the Treaty still required unanimity, all the Member States agreed that consensus must continue to be the rule in about 25; in the other 50 cases both the Portuguese and the French Presidencies considered that unanimity should and could be replaced by qualified majority voting. 

During the last months of the negotiations, it was established that, among these articles, there were five sensitive areas where the transition to qualified majority voting was particularly important for an enlarged Union, but would be difficult for certain delegations to accept. The relevant provisions concerned the coordination of social security schemes for cross‑border workers and minimum requirements in social policy (Articles 42 and 137), visas, asylum and immigration issues (Article 67), the taxation question (Article 93), the services and industrial property aspects of the common commercial policy (Article 133) and the financing of economic and social cohesion policy (Article 161). 

Specific requests on particular issues from a number of Member States meant that this list could get unacceptably longer. However, substantial progress was made on most of the overlapping demands (the use of specific declarations helped defuse the situation), so that the final negotiations concentrated on the five key questions.

But here the situation very quickly became extremely tight, with the UK refusing outright to abandon national sovereignty to such a far-reaching extent, more specifically in taxation and social security, while France had its traditional problem of commercial policy exemptions for culture and the less developed countries wanted to retain a final say on the financing of economic and social cohesion policy.

In these circumstances, it is not surprising that the final compromise represents the lowest common denominator.

Despite strong pressure from the Commission, Italy and Belgium, the UK argued strongly that taxation and social security matters were for national governments and parliaments and not suitable for qualified majority voting, even though the compromise proposals covered only indirect and company taxes and were aimed at smoothing free movement between countries. Finally, the IGC decided not to amend article 42 TEC concerning the coordination of social security systems and to retain the unanimity requirement for all treaty provisions relating to taxation (articles 93, 94 and 175 TEC).  The UK also successfully opposed ending the veto on measures to combat fraud against public finances, which the Presidency had shifted from the tax heading to customs.

As far as the common commercial policy is concerned, the final deal was to allow, in principle, the broader area of trade in services to be decided by qualified majority, but only after accepting exemptions for France in culture and audiovisual services. The new text of Article 133 was settled after hours of talks between the French and other delegations. This agreement follows ten years of campaigning by the Commission to obtain greater freedom to lead negotiations for the EU in trade in services. The final compromise includes the negotiation and conclusion of international agreements in the area of trade in services and the commercial aspects of intellectual property. These agreements are concluded by qualified majority, except when they include provisions for which unanimity is required for the adoption of internal rules, or when the agreement concerns an area on which the Community has not yet exercised its responsibilities. In addition, the agreements related to the harmonisation of cultural and audiovisual services, education services, social and health services continue to be the subject of responsibility shared with the Member States.

 The overall compromise therefore appears to meet in part the Commission’s demand that exceptions be kept to clearly defined areas, with minimum effect in other sectors. It is worth noting here that the draft Treaty presented at the beginning of the summit included an attached Protocol on the participation by the European Community and its Member States in the work of the WTO under Article 133(4). This text essentially codified existing practice, but also helped define the respective roles more sharply, particularly in areas where responsibility is shared and the Commission had always requested more clarity. However, this useful text was not included in the final draft.

The unanimity rule was also retained in the more controversial areas of migration and asylum, while the less developed countries succeeded in keeping their veto on the financing of the Structural Funds, at least until 2007. The IGC only decided that a major part of the visa, asylum and immigration policy would be adopted in the future under the co-decision procedure without specifying this later date. As far as the cohesion policy is concerned, the introduction of the qualified majority voting from 1 January 2007 was decided, provided that the multiannual financial perspective for 2007 and beyond and the corresponding interinstitutional agreement had been adopted by that date. 
This means that, despite being poorer, the new countries that join will have very little say here in future—another sign that the cohesion of the Community is giving way to a less homogenous Union, where newcomers must make part of the sacrifices that are needed themselves, if they are to take up their place alongside more advanced partners. While it may be feasible in budgetary terms to reach unanimous decisions sharing out resources more equitably among ten or even fifteen Member States, it will no doubt be virtually impossible to do the same in a Community of 30 or more Member States. The larger the family, the harder it is to stick together.

In the end, qualified majority voting was introduced in only 27 provisions—of varying degrees of significance—out of the 50 initially proposed by the Commission and the 75 cases where the unanimity rule still prevailed in the Treaties. The co-decision procedure will be applicable for only seven provisions that change over from unanimity to qualified majority voting (articles 13, 62, 63, 65, 157, 159 and 191). The IGC was, however, unable to extend the co-decision procedure to legislative measures that already come under the qualified majority rule, like the agriculture or the trade policies.

If the extension of qualified majority voting in connection with the co-decision procedure was the benchmark of success at the Nice summit, we cannot claim that the results match up to the ambitions of the French Presidency or of the advocates of closer integration and more effective institutions. For his part, President Prodi has been very critical of the narrow-minded attitude that prevailed at Nice in this respect.

2.	Weighting of votes in the Council

It emerged very quickly that weighting of votes would be the thorniest issue in the whole negotiations, as the new weightings would form the basis for the future balance of power—all the more so since the decision taken here would affect the applicant countries, prefiguring the plausible alliances after enlargement of the EU.

Up to now, the system has proved sufficiently representative and balanced: the size of the qualified majority has varied from 67% with the six founding Member States, to 70% with ten Member States; now, with fifteen Member States, it is 71.2%. Decisions have always had to gain the support of a large majority in terms of population and at least half of the Member States, while the blocking minority required to stop any decision could be obtained only by the three Member States with the largest population or by a larger group of smaller Member States.

However, none of the proposals on the table appeared to offer the same guarantees in an enlarged Union. This situation, already complicated at the outset, was further aggravated by Germany's ambition to ensure predominance over the other large countries on the strength of the effects of reunification, by the Spanish and Dutch aspirations to improve their respective positions between the larger and smaller countries, by the determination of all the large countries to offset the possible loss of a Commissioner through better representation in the Council, and by the concern of the small countries to safeguard a certain degree of influence in the decision‑making process.

When the summit opened, the questions on the table included the following difficult choices: a) should the treaty lay down that a qualified majority must always encompass a majority of Member States (the position supported by the ten Member States with the smallest populations)? b) What would be the size of the blocking minority, given the fact that the larger Member States wanted it kept at the present level, which can be attained by the three of them working together? c) Should the present groupings of Member States be retained in the event of reweighting, or more flexibility introduced to the system in order to differentiate further between larger and smaller Member States? And finally, d) which model and which figures should form the basis for an agreement?

The simple dual majority proposed by the Commission and supported by the smaller Member States, a plan to adapt the present system —with a significant change of balance in favour of the larger Member States—and three intermediate Presidency proposals were all rejected. Several Member States (Belgium, Sweden, Greece, Netherlands, Portugal and Finland) tabled specific proposals, but there appeared to be deadlock until Sunday evening. When France tried to take advantage of its Presidency to conclude a deal that favoured the large countries, its proposal was strongly rejected by some of the smaller Member States: the Portuguese Prime Minister António Guterres called it an institutional coup d’état and Belgium even threatened to veto the entire final package.

A compromise was found in a kind of triple majority: for a decision to be adopted it must have the agreement of the majority of the total number of the Member States, between 71 and 74% of weighted votes and, if a Member State so requests, 62% of the total EU population. It was also agreed that, after the successive waves of accessions, the requisite percentage of weighted votes will increase to a maximum of 73.4%, which means that three large Member States and one small State will be able to oppose a decision that has the support of all the others.

While it is true that everyone was—more or less—satisfied, the decision‑making process has now become more cumbersome, with the way left open to many different alliances, which could in the end make quite a difference. One cannot help but notice that in a more German-influenced Europe (including Poland, the Czech Republic, Hungary and the Baltic States), Germany's relative weight will increase considerably, despite its parity of votes with the other major countries, in particular France. This is perhaps where we can find the roots of the final compromise. Despite the drawbacks, this fiddling with the weighting of votes can be said to be the only real decision of the Nice Summit and the only real breakthrough with a view to enlargement. It is not by chance that the greatest satisfaction with the final compromise was expressed by the applicant countries.

3.	Composition of the Commission and its political accountability

Right from the start, the dilemma was whether to reduce the number to one Commissioner per Member State or to establish a Commission with fewer members. Delegations were divided between these two options, the ten smaller Member States being more comfortable with the first, and the five larger Member States preferring the second.

As expected, the smaller countries resisted to the end, not only holding on to their own member of the European executive, but also refusing to give in to proposals for a hierarchy among them.

In these circumstances, a third compromise option appeared to be emerging: introducing a Commission with fewer members after a transitional period when the status quo would be preserved. Thus, when the next Commission took office in 2005, it would consist of one Commissioner per Member State and, subsequently, for example in 2010, the numbers would be reduced in parallel with the introduction of a rotation system in which all Member States would be on an equal footing.

In the end the chosen solution was to set a ceiling to be applied at a later date, while retaining the status quo up to 2005. What happens afterwards is not altogether clear: it appears that from 2005 the larger Member States will lose their second Commissioner and all Member States, old and new, will have one Commissioner each until their number reaches 27. From then on, the number of Commissioners will be cut and a system of egalitarian rotation will be installed amongst all the Member States. However, neither the size of the reduction nor the detailed arrangements for rotation have been laid down, which means that this question will be settled only after a future IGC or by the unanimity of the Council. One way or another, a definitive ceiling for the Commission’s membership must be decided after 2010.

In addition to these changes to the Commission’s membership, the IGC reached agreement on a number of measures concerning the organisation of its internal proceedings, and in particular to strengthen the President’s powers in order to guarantee the consistency and effectiveness of the Commission’s decision-making. The President may now reshuffle portfolios during the term of office, appoint Vice-Presidents and ask a Commissioner to resign, albeit after obtaining the collective approval of the Commission (Article 217). 

It is unclear whether these measures can offset the loss of effectiveness arising from the increase in the number of Commissioners, even if only temporary. It is worth noting that, at the request of the smaller Member States, proposals on the President's power to lay down the political guidelines to be followed and the re-evaluation of the role of Vice-Presidents in supervising and coordinating entire policy areas were abandoned in favour of greater collective responsibility of the institution.

 We should note too that a proposal allowing the Commission to ask for a vote of confidence in the European Parliament was quickly discarded as a step too far towards giving the Union institutions a parliamentary structure. However, such a procedure would have rationalised the political accountability of the Community executive, which has suffered a rough ride with the recent resignation of the Santer Commission—another opportunity missed.

On the other hand, the overall success in applying qualified majority voting to appointments was extended at the last minute to include that of the Commission President, ensuring that a single country can never again block such an appointment, as the UK did with Jean-Luc Dehaene in 1994. This is undoubtedly a positive step, but there is no guarantee that a majority appointment will help boost the legitimacy and prestige of the Commission President and thus enable him or her to play a more effective role of primus inter pares than provided for in the present Treaties.

4.	Composition of the other institutions

The plat de résistance here was the European Parliament. In the end, the Amsterdam ceiling of 700 had to be raised. To keep all sides happy, the number of MEPs will now be limited to 732, and Germany will have the biggest representation (99 seats). The composition of Parliament will change from the next European elections in June 2004, with reductions in the number of seats in all Member States (total reduction from the current 626 to 535) except Germany and Luxembourg, which will retain their present numbers (99 and 6 respectively). This judicious arrangement was the outcome of very lively exchanges between all the partners, with the applicant countries having their own supporters inside the negotiating room. 
As the likelihood is that new Member States will enter the EU during the 2004-2009 term of office, and that as a result additional MEPs will be elected in these countries, it is anticipated that the maximum number of 732 seats may be temporarily exceeded in order to accommodate MEPs from the countries which will have signed accession treaties after the 2004 elections. This means that an additional arrangement should be necessary after the termination of the enlargement process, if the ceiling of 732 MEPs must be respected.  The final figures are based primarily on each country's population, with a certain bonus for the smallest countries to allow for the representation of all political tendencies. 
The lively discussions on this subject, which were even tougher than those on the composition of the Commission, illustrate the growing importance of Parliament in the EU decision‑making process. In this respect, it must be emphasised that, in essence, membership size in Parliament was used to counterbalance the position in the Council. This highlights not only the defensive attitude of the Member States, but also the increasing role of the Parliament/Council tandem in the production of European legislation and a diminishing of the respective role of the Commission.

Other gains for Parliament include the Statute for MEPs and financing for political parties at the European level, despite a declaration stating that this implies no transfer of powers to the Community and does not affect the application of national constitutional rules (Article 191). Supporters of the sovereign State are haunted by the specter of the emergence of European political forces that transcend national political divisions. 

By contrast, the protection of the Community’s financial interests and the creation of a European Prosecutor, issues of great concern to Parliament, were not even backed by a small group of Member States. Parliament's main disappointment, however, was the poor progress in extending qualified majority voting in connection with the co-decision procedure and the refusal to grant official status and binding legal force to the Charter of Fundamental Rights. Some predict that this may be a reason for rejecting the Nice Treaty, and some Member States are linking acceptance of this issue with their ratification procedures. We do not believe that things will reach that point.

As for the rest of the institutions, things were much easier, although this facility in obtaining results must be seen against the fact that it was the most “generous” solutions which were adopted.

For example, the Court of Auditors will comprise one member per Member State and the Economic and Social Committee and the Committee of the Regions will each have 344 members, with an absolute ceiling of 350, the highest number ever envisaged during the negotiations. The two bodies' consultative powers now extend to the measures in the social security field required to provide free movement under Article 42 EC. The Treaty also lays down that members of the Committee of the Regions must hold an electoral mandate and that their presence on the Committee must end when their term of office ends (Article 263).

5.	The future of the European Union’s Court system

Despite the importance of the Court system—particularly with a view to increased federalism and during the transitional period—which leaves judges a wide margin of discretion, this was one of the least controversial chapters in the negotiations. Agreement was reached fairly quickly, and the IGC came to a conclusion even before the European Council meeting. The amendments made are numerous and significant, further highlighting the merits of the consensus.

The main novelty is the elevation of the Court of First Instance (CFI) to a court enjoying widespread powers. Its jurisdiction has been extended not only as regards actions brought directly—it now covers virtually all such actions—but across all areas of Community litigation, including part of the procedure for references for preliminary rulings, which is seen as the core of the European system of constitutional case law. Under Article 255 EC, the jurisdiction of the CFI becomes the rule, save in cases reserved for the European Court of Justice (ECJ) in accordance with its Statute, or where the CFI itself refers a case to the ECJ on its own initiative because that case—for example a reference for preliminary ruling—calls for a decision in principle likely to affect the unity or consistency of Community law. The CFI also takes on the role of an appeal court for decisions by the judicial panels set up under Article 225a.

Given the increase in the CFI's powers and in order to relieve it of specialised cases (particularly actions brought by officials), Article 225a provides for the creation, based on a right of initiative shared between the Court and the Commission, of specialised judicial panels, which will operate as junior courts within the hierarchy of the European judicial system.

Another novel feature is the inclusion in the Treaty (Article 229a) of a clause allowing the creation of judicial bodies in specialised areas, by unanimous decision of the Council and after ratification by the Member States, starting with Community industrial property rights (European patent disputes). This alleviates the CFI's concerns regarding these very technical cases, which already promise to generate a rather heavy workload, and points the way towards a system for scrutinising the legality of other specialised rules that may be laid down, perhaps in the near future, by new independent agencies established in other fields of a highly scientific and technical nature (e.g. air, maritime and food safety).

Finally, the number of judges in the ECJ is the same as the number of Member States (Article 221). Meanwhile, to prevent its structure from becoming too cumbersome, the ECJ may sit either in chambers (five judges) or in a Grand Chamber (the size of which is set by the Statute at eleven judges) or, in exceptional cases, in plenary session. Judges serve for a six-year renewable term and are appointed by the Council acting by qualified majority, after consulting the European Parliament, on the basis of proposals from each Member State. By contrast, the number of Advocates General is limited to eight (Article 222), although the Council may increase this number by unanimous decision.

The CFI is composed of at least one judge from each Member State and may be assisted by Advocates General if the Statute so provides (Article 224). This illustrates the CFI's vocation, which is to become a court concerned with examining facts and equipped with the resources to fulfill this task, in comparison to the ECJ, which must remain a high court with a restricted composition, more along the lines of a federal supreme court.

Another interesting innovation is that Council will now approve the rules of procedure of both the ECJ and the CFI by qualified majority rather than unanimity (Article 223), thus facilitating the internal organisation of their work.

A similar and even more interesting new development is that the Statutes of the ECJ and the CFI are to be laid down in a separate protocol, to be adopted by the Council acting unanimously, based on a right of initiative shared between the Court and the Commission. Only Title I of the Statute (on the status of judges and advocates general) will still come under the deliberations of the Heads of State and Government in amending the Treaties. This may herald a new way of revising certain provisions of primary law more easily following a scission of the Treaties into two parts.

Last but not least, Parliament has obtained two long sought-after prerogatives: an extension of its right to bring court actions direct—on a par with the Member States and the other Institutions (Article 230)—and the power to ask the Court for an opinion on the compatibility with the Treaty of an international agreement (article 300 par.6). These amendments, which follow directly from Maastricht and Amsterdam, have given a massive boost to Parliament's role as a real co-decision-maker in the Community's decision-making process.

These changes can only be welcomed. They will give the judicial branch of Community authority added confidence and greater effectiveness in tackling the challenges it faces not only in the run-up to enlargement, but also at the dawn of a new era of constitutional turbulence, in which the Court will very probably be called on to play a real role in the division of powers between the Member States and the institutions, and between the institutions themselves, in accordance with the principles of subsidiarity and the separation of legislative, regulatory and executive power.

To carry out this task reliably, the European court system needs not only adequate material resources, but also—and primarily—greater legitimacy in the eyes of the public, which can be achieved only through the quality, constancy and consistency of its case law. The Court's authority must not be watered down in a multipolar European judicial system that is difficult for the public to comprehend. It is therefore important for the ECJ to establish as quickly as possible, in accordance with the declarations attached to the relevant Treaty provisions, a clear breakdown of responsibilities between itself, the CFI and the new European judicial bodies. This breakdown must serve the administration of justice, an increasingly complex and technical affair, but above all it must safeguard the ECJ's constitutional nature and its vocation to become the Supreme Court of the United States of Europe. We are convinced that, irrespective of the final outcome of European integration, and particularly in view of the uncertainty over the nature of that outcome, the ECJ will long be called on to play a crucial role in preserving the Community bond and driving forward the common enterprise, with due respect for the rule of law.

6.	Closer cooperation and flexibility

This issue was the one where most progress was made during the negotiations. A gradual easing of attitudes that were at first hesitant or downright hostile led to a broad consensus, marking clear progress over the achievements at Amsterdam (Articles 40 and 43-45 TEU).

A number of smaller and medium-sized Member States that were initially suspicious of an initiative emanating essentially from their larger counterparts—followed by the founding members of the Union—were gradually won over to the movement in the hope that it might help them consolidate a relative advantage over the applicant countries, which would in any case be relegated to a second or third "division" for an indeterminate period after accession. "Since we are heading for a less homogenous Community, let's at least be in the leading group" seems to have been the argument that won the day. This shows the different paths that lead to closer cooperation and also highlights the inherent difficulties in applying the arrangements in practice.

Nevertheless, the step was taken, with fewer problems than might have been expected at the start of the negotiations, enabling the French Presidency to redraft in November the relevant provisions of the Amsterdam Treaty in sixteen clauses numbered from A to P and divided into four categories: 1. The general principles governing the whole mechanism (A-F), 2. Clauses applicable in the context of the EC Treaty (G and H), 3. Clauses applicable under Title VI of the EC Treaty (JHA) (clauses N‑P) and 4. Clauses which may be applicable under Title V of the Union Treaty (CFSP) (clauses I‑M). 

However, during the endgame of the negotiations, Tony Blair persuaded the French Presidency to remove defense from proposals on closer cooperation. This question formed part of the final compromise, but was also the subject of deep disagreement during discussions on the independence of Europe's military capabilities vis-à-vis NATO, with France and Germany pleading in favour of an independent European military force, in opposition to the UK. As a result, clauses I to M apply only to the other fields falling under the second pillar, i.e. for the implementation of a joint action or a common position. Consequently, enhanced cooperation of this kind cannot be used for issues that have military implications or which affect defense matters. The authorisation for closer cooperation in these areas is given by the Council after receiving the opinion of the Commission, particularly on their consistency with the EU’s common policies. In spite of the fact that the Council decides by qualified majority, each Member State may ask that the matter to be referred to the European Council for a unanimous decision, the so-called emergency brake clause.

In the general clauses, it is worth pinpointing two important new developments: the minimum number of Member States required to instigate closer cooperation is established at eight, and unanimity is no longer necessary for the mechanism to be set in motion. Other provisions stipulate that the acquis communautaire must be respected, that areas where the Community has exclusive powers must be preserved, that the internal market must not be affected, and that the mechanism must be open to all Member States (clause A). The other clauses lay down that closer cooperation may be engaged only when it has been established that it is impossible to follow the normal procedures provided for in the Treaty (B), that the participation of the greatest possible number of Member States must be encouraged (C), that the relevant operational expenditures should in principle be borne by the participating countries (E), and that consistency with Union policies must be guaranteed (F).

As regards closer cooperation under the EC Treaty, the transition to majority voting is offset by the possibility for any Member State to refer a question to the European Council before the Council of Ministers takes a decision (G). Furthermore, when closer cooperation concerns an area that comes under the co-decision procedure, the assent of the European Parliament is required.

Extending the mechanism to the second and third pillars was more problematic, in particular its introduction to matters falling under the common foreign and security policy, which was still on the agenda for Nice, but, as we have seen, was eventually dropped as far as defense matters are concerned.

Two other points were discussed at the summit: the possible exclusion of certain matters from the scope of closer cooperation (e.g. internal market and cohesion policy issues), and the role of the Commission and Parliament when closer cooperation is triggered or non‑participating Member States seek to join it. Under point (e) of clause A, closer cooperation must undermine neither the internal market nor economic and social cohesion. Clause G guarantees the Commission's right of proposal and Parliament's right to be consulted, although in matters relating to the second pillar, the Commission merely gives an opinion, while Parliament is simply informed (clause K).

In the end, the “closer cooperation package” appears to be fairly well balanced. It ensures that the EU will not stagnate by, on the one hand, allowing Member States who so wish to advance, subject to certain conditions, while guaranteeing the others the right to be able to join the leading group. By preserving the Community framework and the cohesion effort, the closer cooperation mechanisms appear capable of keeping Europe on track towards ever-tighter integration, while allowing each country to go along this route according to its own rhythm and special needs.

It is true that the closer cooperation mechanisms will usher in what has variously been termed a two-speed, à la carte or "variable geometry" Europe. It is also true that such arrangements may affect the Community method, which until recently was based on the need for everyone to go down the same road together. We might say that the old argument over “widening versus deepening” has been decided, with enlargement taking priority and concerns about the perfect cohesion of the whole edifice being left aside—at least for the moment. We may fear that in so doing the Community is heading towards a free trade area rather than a political Union. This is plausible, but we should not rule out a certain degree of optimism: the same fears were voiced when the first opt-ins and opt-outs were introduced, but were not borne out by the facts. In the end, these mechanisms operated like a locomotive pulling the latecomers in the desired direction, and may be that closer cooperation will have the same effect. The institutional framework offers the necessary guarantees, and the change of mind of several small Member States points in that direction.

Only the future can answer this question. In any event, given the political necessity of eastward enlargement and doubts over the long-term goals of European integration, closer cooperation appears as a more reasonable and calculated risk than as a retrograde step in that process. Furthermore, closer co-operation could be considered a materialization of the constitutional tolerance principle.

7.	The Charter of Fundamental Rights

This issue is related to the discussion on democratic values and the proposed amendments to Articles 6 and 7 TEU. Article 6 states that the EU must respect fundamental rights, as guaranteed by the ECHR signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States. Under article 7, the Council may penalize a Member State if he has seriously and persistently breached fundamental rights, but there is no provision for any mechanism to prevent infringements of those rights. Following the traumatism of the Austrian experience, the IGC decided to add to article 7 TEU a provision aimed at preventing infringements of human rights. The Council, acting by a majority of four-fifths of its members, after receiving the assent of the European Parliament and having heard the Member State concerned, may decide that there is a clear risk of a serious breach of the fundamental rights or freedoms on which the EU is based. The Council may send appropriate recommendations to that State. The initiative for such decisions can come from one-third of the Member States, the Commission, or the European Parliament. The ECJ only reviews the factual conditions of the procedure (Article 46(f)). 
No doubt that is a very carefully drafted procedure, in order to accommodate the sensibilities of all Member States.

It had been proposed that a reference be included in Article 6 to the Charter of Fundamental Rights of the European Union, which was proclaimed and officially signed in Nice on 7 December by the Presidents of Parliament, the Council and the Commission. But the majority of Member States preferred to go no further than this solemn proclamation. So for the time being the Charter merely has the status of a declaration.

The Charter of Fundamental Rights is in our view an important issue, even though it has not yet been officially included in the Treaty. We shall therefore make some brief comments on it.

At the Cologne summit in June 1999, the Heads of State and Government agreed on the need, at the present stage of the EU’s development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the citizens. They also decided to set up an ad hoc body composed of representatives of various constituent institutions in order to draft the charter.

The precise make-up of this body, known as “the Convention”, was determined at the Tampere European Council in October 1999. It had a unique composition of representatives from the Member States, the Commission, the European Parliament and national parliaments.

Its proceedings were also unique: sessions of the Convention were open to the public and all preparatory proceedings were made available on the Internet. Hearings were held with the Ombudsman and with representatives of the Economic and Social Committee, the Committee of the Regions, civil society in general and the applicant countries. The ECJ and the Council of Europe took part in the proceedings as observers.

The Convention held its first meeting on 17 December 1999. On 26 September 2000 the various groups considered that the draft Charter was acceptable to all parties and on 2 October the Chairman, Roman Herzog (former President of the Federal Republic of Germany), submitted the draft for the Biarritz European Council, where it was unanimously approved by the Head of Governments on 14 October.

The Charter consists of a preamble and 54 articles divided into seven chapters: dignity (1 to 5), freedoms (6 to 19), equality (20 to 26), solidarity (27 to 38), citizens’ rights (39 to 46), justice (47 to 50) and general provisions (51 to 54).

It is not our intention to analyse the content of the Charter. However, one point worth mentioning is that it was drawn up as if it were destined to form part of a real European constitution, something which is always a possibility. Against the background of the Treaty negotiations at Nice, it is even more interesting to take a brief look at the divisions which emerged during its drafting and adoption.

First of all we find two camps—those countries wishing to go further down the road to the political integration of the EU and arguing staunchly for the Charter to be formally included in the Treaty, and those who reject any idea of introducing a constitution and hence prefer the text to have a purely declaratory status. In the end, the latter view prevailed, the problem for all sides being one of visibility rather than substance, particularly since the more federalist Member States, such as Germany, feared that the Charter might encroach on their own constitutional powers.

At the same time, many observers warned of the danger of having the protection of human rights in the EU set in stone at a level lower than that already guaranteed, notably by the ECJ, which takes on board existing standards in all the Member States.

Furthermore, several organisations representing civil society protested strongly about the Charter's shortcomings, particularly as regards social rights, the dangers posed by new technologies and safeguards for linguistic, religious and cultural differences.

In this context two major questions were raised and resolved in the Charter's general provisions: its scope, and the level of protection offered.

On the first question, Article 51 states that “The provisions of this Charter are addressed to the institutions and bodies of the Union…only when they are implementing Union law.” More specifically, the second paragraph provides that “This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.”

In an explanatory text on the complete draft of the Charter, we read that “…Article 51… seeks to establish clearly that the Charter applies primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity. (It) is only binding on the Member States when they act in the context of Community law.”[Emphasis added]. 
Leaving to one side the general difficulty in applying subsidiarity in texts of a constitutional nature, there is a real question of interpretation here arising from the terms “implement”, used in the Charter, and “act”, used in the authentic commentary on the provisions. Clearly the first term is more restrictive than the second. In its decisions the ECJ has consistently held that human rights should be taken into account by the Member States not only when transposing Community law in their own legal systems, but also when they act in the framework of Community law. Despite a slightly different wording in a more recent case, previous decisions must still be considered valid. Should we conclude then that the Charter could affect this case law?

An even more serious question arises in paragraph 2, which confirms that the Charter may not have the effect of extending the powers and tasks conferred by the Treaties on the Community and the Union. It is true that the ECJ came to the same conclusion—for different reasons—in its opinion No 2/94 on the Community's accession to the ECHR, given at the Council's request. The Court feared an overlap between its own jurisdiction and that of the Court in Strasbourg, and in particular the intrusion of the latter in the interpretation of Community law. So the Charter solemnly enshrines the fact that it is not possible for the EU to have a human rights policy. Questions may be raised as to whether such a conclusion is justified.

Fortunately, those who drew up the Charter, perhaps foreseeing the difficulties ahead, set a minimum standard in Article 52, which states that “This provision shall not prevent Union law providing more extensive protection.” The problem arises in the relationship between the provisions of the Charter and those of the ECHR. In fact, to ensure the necessary consistency between the two instruments, it is laid down that, insofar as the rights of the Charter also correspond to rights guaranteed by the ECHR, their meaning and scope, including authorised limitations, are the same. The minimum-standard rule means that the Community legislator must comply with these standards without adversely affecting the autonomy of Community law or the ECJ. The meaning and the scope of the guaranteed rights are determined not only by the text of both instruments, but also by the case law of the two Courts and the prerogative of the Union to provide more extensive protection in this context.

If we add to this the very general way in which the provisions and clauses of the Charter have been drafted, we can conclude that the list is open to improvement in terms of both quantity and quality. Neither the national nor Community legislator is bound to exercise any power when it comes to protecting rights further and the prerogatives of Community judges are left similarly intact.

Finally, the transition to the Charter could have been costly, but, perhaps because of the contradictory aspirations of the different partners, it has been achieved with a minimum of pain. We do not wish to minimise the symbolic value of the document or the considerable effort by the authors in arriving at an outcome which may well constitute the best compromise acceptable to all, or the high profile it has given to the EU's shared values, by highlighting the sources of its political and moral legitimacy. We must now wait for its practical application. But one cannot help but think that many people will try to use the text, and particularly the preparatory work, as a pretext for limiting the scope of the fundamental rights set out in the Charter. Transparency also has a price…

At the end of the day, no one can deny that human rights and citizens' rights are adequately protected in Europe, given the existence of diverse (national and international) instruments. There was a gap in the way they were perceived at European level, which was filled by the Charter. “Politics without policy” could be its motto, since there can be no doubt that the EU must have a policy of protecting fundamental rights, not only outside but within its borders. With the Charter, we have to some extent put the cart before the horse. An internal Union policy would certainly be an additional guarantee for the protection of European citizens, particularly the most vulnerable (minorities). Giving its content constitutional status would thus be the last remaining stone to be placed on the Community edifice. By inverting the natural order of things, the Treaty of Nice has once again shown that the paths leading to European unification are mysterious!

8.	Other issues 

Apart from the main points, the Treaty of Nice also contains a number of secondary or subsidiary innovations, which we shall now briefly review in order to complete our overview of its content.
a)	The role of the European Judicial Cooperation Unit (Eurojust) in the fight against crime is confirmed and broadened with its official inclusion in Articles 29 and 31 of the TEU.
b)	Interinstitutional agreements are also given official status by means of a Declaration on Article 10 of the EC Treaty, which considers them as a tangible way of extending the duty of sincere cooperation, as laid down in that Article for relations between the institutions and the Member States, to relations between the institutions. These agreements can neither change nor supplement the provisions of the Treaty and can be concluded only with the concurring opinion of the three Institutions.
c)	New progress is made in the field of transparency and sound administration through the Declaration on Article 21 of the EC Treaty calling on the institutions to ensure that all written requests from the public are answered within a reasonable period.
d)	The Council will now be able to decide on the Community's position at international level as regards issues of particular relevance to economic and monetary union, acting by qualified majority and after consulting the ECB. The Treaty also includes a Declaration on Article 111 of the EC Treaty enabling all the Member States in the euro area to be fully involved in each stage of preparing the Community position.
e)	The European Council will now be able to amend provisions relating to the operation of the Governing Council of the ECB, on the initiative of either the Commission or the ECB itself (Article 10 of the Statute of the European System of Central Banks and of the ECB).
f)	A specific legal base has been laid down for the establishment of an advisory committee on social protection (new Article 144).
g)	The name of the Official Journal has been changed slightly to the Official Journal of the European Union (Article 254).
h)	The Council will now be able to amend certain provisions of the Statute of the EIB (notably the composition of her direction), by unanimous decision (third paragraph of Article 266).
i)	The framework for economic, financial and technical cooperation with non-member countries has been clarified (new Title XXI and Article 181a), while the Treaty also simplifies the procedure for establishing the Community's position in a body set up by an agreement with non‑member countries which is called on to adopt decisions having legal effects (second and third subparagraphs of Article 300(2)).
j)	A Special Protocol has been adopted on the financial consequences of the expiry of the ECSC Treaty, including the transfer of assets to the Community budget and the use made thereof.

Special mention should be made of the conclusions of the European Council concerning the common European security and defense policy (a timetable was established for the introduction of a European military force), even though they are not entirely an integrant part of the new Treaty. It is worth noting here that the subparagraphs of Article 17 TEU alluding to the Western European Union (WEU) as an integral part of the Union and providing it with access to military operational capabilities, have been deleted. Apparently these matters have now been transferred direct to the framework of the EU Treaty. It is not clear whether the WEU is also incorporated in the Treaty or whether it has become obsolete and is set to disappear in the near future. In any event, what is clear is that defense matters are given a much more prominent place in the Treaty. 
Nor should we lose sight of the fact that the Council will now appoint the Special Representative for the CFSP by qualified majority (fourth indent of Article 23(2)) and that there is also partial scope for deciding by a qualified majority on the conclusion of international agreements in areas of the CFSP and justice and home affairs where the same majority is required for the adoption of decisions or internal measures (Article 24 TEU). Finally, by giving some independent authority of decision to the political committee (body non provided by the Treaty), the Council proceeds to a major institutional innovation (Article 25.3).

Other important decisions at the summit dealt with the European Company Statute (in the pipeline for 30 years), the new economic and social agenda (with emphasis on coordination rather than regulation), maritime safety and the establishment of the European Food Authority (matters requiring a different regulatory policy based on the creation of independent agencies) and innovation policy (focused on the e-Europe Plan).

Last but not least, it was also decided that, following those summits which have been already scheduled, future European Councils will be held in Brussels. So, once the EU has reached 18 Member States, all summits will be held in the capital of Europe—a good decision, but not enough to compensate for the lack of Community spirit evident at Nice.

Conclusions

Nice was no picnic, the new Treaty emerging after a long and painful confinement. The worst was avoided, but public confidence in the integration process did not gain in strength. The results were meager and do not appear to match up to the challenges awaiting the Union. There are no technical leftovers from Nice, but neither were any historic decisions taken. The amendments made to the Treaty are more like a patchwork that is just large enough to cover the new Member States than an orderly and rational arrangement designed to ensure the consistency and effectiveness of the European institutions.

However, the task was not an easy one. Despite what appeared to be a purely functional agenda (to prepare the Union for enlargement), the real topic of the discussions was in fact the balance of power in Europe. Behind the esoteric jargon (the composition of the Commission and Parliament, the weighting of votes and closer cooperation) lies the fundamental question—which at this stage no one wants to ask in such terms—“Where does power lie in the EU and who exercises it?” or even more apt, “Where should power lie and who should exercise it?”

This question was easier to answer in a confined common market, but becomes increasingly difficult in an economic and political union of 27 partners. In this respect, having a restricted agenda of three functional items, without scope for relieving latent tensions, meant that the constitutional nature of the debate was overshadowed. Perhaps it might have been better to have placed the leftovers from Amsterdam in their proper context by incorporating them in a wider debate on the future of the Union, thereby broadening the scope of the final compromise and giving the real issues at stake in the negotiations a greater public airing. 

Because of the choice of a limited agenda, the negotiations were often seen as a horse‑trading exercise, where the prevailing principle was that of quid pro quo. For example, Germany gave up additional votes in the Council in return for 27 more MEPs than the other large countries, France had to give concessions on the common commercial policy to ensure parity with Germany in the decision‑making process; the small Member States had to accept a reduction in their relative weight in the Council to safeguard their equal representation on the Commission, and so on. But appearances are deceptive—for behind the fight for parity of votes in the Council or 27 more seats in Parliament, the real issue at stake was the balance of power between Germany and France. 
The struggle over equal representation on the Commission conceals a state of equilibrium between the smaller and larger countries. The horse-trading over the extension of qualified majority voting is a screen for the relationship between the governmental and supranational tendencies in the EU, while closer cooperation has to do with the possibility and utility of having a leading group or "Directory" in tomorrow's Europe. In short, what was stake was the division of responsibilities between the Union and its Member States, the detailed arrangements for exercising those responsibilities, and the sharing of power between the Union partners. We are therefore in the midst of an undeclared constitutional debate. How long will it last?

The Nice summit had all the ingredients—the tension, the long drawn‑out discussions and the criss‑crossing alliances—that are a feature of strategic negotiations.

Let us now look at the main lessons to be drawn.

In formal terms, little was achieved: we have already seen modest progress in introducing qualified majority voting in connection with the co-decision procedure. With the weighting of votes more complicated than ever, we can quite legitimately ask whether this arrangement is adequate for decision-making in a Union of 27 Member States. The very generous composition of the institutions, in particular the Commission, does not inspire optimism either. The status quo in the institutional balance does not contribute to reducing the democratic deficit or increasing the Community's legitimacy. Closer cooperation appears to be necessary to drive the locomotive forward, but the concerns about implementing such cooperation, leading to a less homogenous and less mutually supportive Europe, are well-founded, especially since, within the vanguard itself that will be created, the qualified majority system further reduces the number of Member States taking the final decision. 

The institutions, and in particular the Commission, have been kept out of the major political decisions (defense), and the struggles over national representation in those institutions is a sign of Member States' mistrust of supranational decision-making procedures in general. The federal bond is still very weak and there is a very real danger of the Union's powers being fragmented. In general, the institutional balance did not suffer dramatic changes. The institutional status quo was preserved in Nice. I personally think that the empowerment of the European Parliament is very close to reaching its limits. The extension of its legislative competences is not the only and perhaps not the most adequate means to reduce the EU’s famous democratic deficit. Restructuring the regulatory process and reshaping the hierarchy of norms could be a better path to democratize the European institutional framework.

Some progress was achieved in specific areas (e.g. the courts), but not enough to compensate the poor overall picture.

The authors of the Treaty, aware of the meager outcome, tried to reassure the public and perhaps themselves by drafting a Declaration on the future of the Union, to be included in the final act of the Conference. After expressing measured satisfaction and emphasising the need for swift ratification with a view to enlargement, this text, which incorporates the main points of the German-Italian proposal on convening a new IGC, records the wish of the Heads of State and Government that there be “a deeper and wider debate about the future development of the European Union”. Without using the words “constitutional” or “federal” on a single occasion, the Declaration announces a new IGC for 2004 and lays down its agenda and timetable. The questions to be dealt with are: the delimitation of spheres of competence between the Union and the Member States, the status of the Charter of Fundamental Rights, simplification of the Treaties, and the role of national parliaments in the European architecture. These problems are of course constitutional in nature. Indeed the Declaration acknowledges the “need to improve and to monitor the democratic legitimacy and transparency of the Union and its institutions, to bring them closer to the citizens of the Member States”. 

The timetable is also interesting, as it is the Belgian Presidency (the Member State showing more advanced federalist positions) that will be given the task of preparing a solemn declaration at the Laeken summit in December 2001 “containing appropriate initiatives for the continuation of this process”. This Conference will “not constitute any form of obstacle or precondition to the enlargement process”. On the contrary, those applicant countries, which have concluded accession negotiations with the Union, will be invited to participate fully in the Conference, while those which have not will be invited to take part as observers. All the ingredients for a constitutional proclamation are there: the issues, the size, the timing, the participants. We must not forget that in 2004, the European political scene will be radically different: Italy goes to the polls in 2001 to elect a new five-year parliament; there will certainly be an early election in the UK, with Tony Blair pressed by opinion polls and determined to expand his room for maneuver on Europe; in France, presidential and parliamentary elections in 2002 are likely to end the cohabitation of Chirac and Jospin—which had such a harmful effect on the clarity of its policy choices—in favour of the latter; and in Germany, Chancellor Schröder seems set for an easy victory in the autumn 2002 elections. With a reasonably solid euro, a military intervention force consolidated in 2003 and a British Prime Minister more disposed to play a leading part on the European stage rather than remain on the sidelines, negotiations to give the Union a constitutional dimension appear plausible.

In fact, what was important at Nice was not so much the results obtained, but the new balance of power which emerged.

To my mind, the two main events of this summit were that the Franco‑German axis, central to Europe’s postwar era, is giving way to more fluid alliances based on individual issues, and that Germany itself is looking for a new leadership based on broader partnerships and pursuing a less intergovernmental agenda.

The divisions between the camps of smaller and larger countries, which were highly visible throughout the negotiations, seem to be more of a passing phenomenon. Once balance has been restored to the decision-making mechanisms, it is normal and to be expected that the smaller countries will forge alliances with the larger ones on specific questions, and according to their material interests. The North-South front which was already losing ground at this IGC, where it operated purely in order to maintain unanimity on the management of the Structural Funds, will be eroded further in the next six years, before disappearing altogether, as Greece too will soon reach 75% of the average level of the 15 Member States. With enlargement, a new front of less developed countries is on the horizon, but it is more likely to take the form of overlapping alliances with bigger countries, chiefly Germany, than become a static "bloc of poor countries", which in any case would be incapable of enlarging the "cake" or taking decisive action on how that cake is divided up. In any event, the relative reduction in the weight of the smaller countries in general and the transition of the former small countries to intermediate powers will hardly favour such a development.

Of course, the situation is far from stable. The Franco-German axis may pick up strength again, if the UK remains outside EMU for a long time, and Germany's leadership may still have to wait if enlargement does not go to plan and the new members feel more comfortable in a multipolar Union than following in the wake of their big neighbour. It cannot be ruled out that, in a Union of continental dimensions, and assuming that the Balkans are stabilised fairly quickly, we shall see the formation of regional alliances bringing into play interests that are more geographical in scope.

What is certain is that the EU will soon be pondering the following dilemma: Since in any case we shall have a less homogenous Union after enlargement, is it better to use these four years to establish a more solid institutional structure in order to guarantee a minimum of cohesion (the constitutional option), or would it be preferable to let things develop on their own with the likely outcome that the Union will be much more like a free trade area taking one-off political initiatives (the intergovernmental option)? I believe the Nice Declaration on the future of the Union confirms that a majority of Member States choose the first option—for different reasons. This group, led by Germany (now the central power) followed by Italy, the Benelux countries and a number of other smaller countries (Portugal and Greece), is likely to increase in size and in strength after successive elections. New entrants will tend to line up alongside this group, not only out of affinity for Germany, but also because they understand that their interests will be better protected in a political Union (even a "soft" one), than in an economic area open to a degree of competition they cannot match or adopt.

If all this is true, the question we must ask is how and on what timescale the Union should be given a limited constitution. The four areas covered by the Declaration constitute a prudent starting point. Whatever one may think of the usefulness of, say, inserting the Charter of Fundamental Rights in the Treaty or the ultimate goals of the European integration process, there is no doubt that simplifying the Treaties, spelling out the principle of subsidiarity and involving national parliaments in this process all represent considerable improvements on the present situation, and help to make the whole edifice more comprehensible and transparent without affecting its foundations.

Since complexity undermines legitimacy, simplifying the European institutional set‑up can also help legitimise it.

We agree here with J.H.H.Weiler, who has constantly repeated his argument that the Treaties, and in particular their application and interpretation by the ECJ, already form a Constitution: “Europe has now such a Constitution. Europe has charted its own brand of constitutional federalism. It works. Why fix it?”

It is true that in this unprecedented experiment involving the voluntary transfer of sovereignty by a large number of historically important countries, it is better to advance gradually, agreeing to adhere to a pact established at each step of the way rather than proclaiming some ultimate constitutional goal from the outset.

The essential thing seems to be to achieve successive individual objectives rather than  rush headlong into an enterprise of dubious legitimacy and uncertain outcomes. To speak in pragmatic legal terms, a good Treaty is preferable to a bad Constitution.

Public support for each step forward is also a vital parameter in this exercise—another reason why any initiative to draw up a constitution must be weighed up carefully. Otherwise we risk putting a brake on the integration process, rather than driving it forward.

The Treaty of Nice was certainly not a resounding success. But neither was it a total failure: it provides a minimal but adequate framework to proceed with enlargement, and gives the Union the wherewithal to consolidate the euro and establish a relatively strong international role, even in defense policy. It cannot be ruled out that the new US administration, which may be weak owing to doubts over its legitimacy as a result of the recent electoral saga, will allow the Europeans enough breathing space to consolidate their unity and assert their independence, on the basis of a strong economy and reliable and operational military capabilities.

The conditions seem to be right for using the next four years to improve the workings of the Union at all levels. There are several important things that need to be accomplished which do not require amendments to the Treaties: the internal reorganisation of all the institutions and a restructuring of the regulatory process to make it more comprehensible, more attractive and more effective in the eyes of the public are two vital preconditions for embarking successfully on any constitutional enterprise.

The IGC announced for 2004 could then quietly go about the task of simplifying the Treaties, free of any hidden agendas. If the EU's existing constitution becomes more visible to the public and its core—stripped of legislative or even regulatory matters—is made easier to revise, another important condition will be met for subsequently convening a real Founding Conference.

This IGC is neither the first nor the last. Nor will the next one already announced be the final step towards a model United States of Europe: as yet we know neither the exact number of States involved nor its geographical—let alone institutional—contours. European integration will be achieved by the Community method or not at all. Its final shape will be the product of a process of permanent constitutional development, in which the central factor in changing mentalities will be the sole obligation that all sides adhere to the pact concluded at each step of the way, leading onwards to increasingly advanced stages and to ever closer Union between the Member States.

The merit of Nice has been once again to confirm this fact, which will perhaps be the old continent's greatest and most noble contribution to contemporary civilisation.

Cambridge,  3 March 2001.                                             Xenophon  A. Yataganas.