Introduction

Stiftung Wissenschaft und Politik German Institute for International and Security Affairs

Scale back or Forge ahead? Opportunities and risks associated with the Intergovernmental Conference on the European Constitution SWP Comments Andreas Maurer

On 4 October 2003 the heads of state and government and foreign ministers of all 25 existing and imminently acceding Member States of the , President Romano Prodi and two representatives of the European Parlia- ment opened the Intergovernmental Conference (IGC) convened in Rome to discuss the draft European Constitution. Just under nine weeks from that date, by mid-December, after a probable total of nine meetings, the Constitution will supposedly be adopted.

The period elapsing between the official that the Italian EU Presidency is proposing reception of the draft Constitution and the to subject both the institutional and start of the IGC totalled three-and-a-half security policy chapters of the Constitution months. Bearing in mind the widely dif- to review by the IGC. However, in addition fering standpoints, the questions arising to this, , , , the Benelux with regard to the IGC are as follows: countries and – since just recently – Den- firstly, whether the draft Constitution mark have all rejected the call to scale back should undergo any substantial changes, the draft Constitutional Treaty consider- and secondly, what consequences such ably, pointing out that any Member State changes might have for the EU’s further wishing to call into question the Conven- development. It should be clear by now that tion’s consensus on a particular issue will all actors involved in the IGC are unhappy be responsible for reaching a fresh agree- with some sections of the draft Constitu- ment. tion. Indeed, in Brussels more than 1,000 Nonetheless, the IGC will have no choice motions for amendments were tabled. It but to word its answers to the questions may also be safely assumed that no govern- raised by individual countries that are ment has any serious interest in seeing the critical of the draft Constitutional Treaty in IGC fail. The alternative would be the such a way that a consensus of the afore- Treaty of Nice, yet it was the style of the mentioned type can be reached. It should Nice IGC and the existence of that Treaty be borne in mind here that those countries which triggered the Convention’s forma- which failed to dispatch their foreign tion in the first place. Finally, it is also clear ministers to the Convention tend to regard

SWP Comments 17 November 2003

1 the draft Constitution as a ‘basis to work the European Parliament would also trigger on,’ in stark contrast to those countries the resignation of the EU foreign minister. which delegated their foreign ministers to Furthermore, the parties to the negotia- co-write the draft Constitution in the Con- tions asked questions about the following vention and then duly signed it. The whole points: debate is characterised by different con-  The definition of a ‘qualified majority’ in ceptions of what the Convention is and the the Council of Ministers; basis for its legitimacy. Indeed, it is viewed  the scope of qualified majority votes in either as a kind of ‘sherpa’ IGC, a constit- the Council in the areas of foreign and uent power, a parliamentary council or an security policy, justice and home affairs open forum, and this divergence of views is policy and the budget; logically also impacting on the IGC.  the fine details of structured co-oper- ation in security and defence policy;  the composition and decision-making Positions adopted by the procedures of the Commission; and Member States  the minimum share of seats in the Euro- The first meeting of foreign ministers pean Parliament. ended in their reaching a broad consensus So far two main lines of conflict have that the following issues should be ex- crystallized, though they are nothing new plored: (in principle they have existed ever since 1. The regular rotation of the EU Presi- the IGC on the Treaty of Amsterdam in dency (Council of Ministers). The Italian IGC 1996–1997). Consequently, the only some- Chair is focussing on the debate about what surprising fact is that the number of Group or Team Presidencies alternating protagonists advocating each position is every two years. The issues to be raised here growing. include both the duration of such presiden- On the one hand, 15 smaller and cies and the number of Member States in- medium-sized countries find themselves volved in them. Of course, an alternative head to head with the six EEC founding would be for every specialist Council of members, the United Kingdom and Den- Ministers to elect its own President inde- mark over the issue of the institutional pendently. organisation of the Union. For whilst the 2. The function and flexibility of the so- ‘small countries,’ which include the ac- called Legislative Council in relation to the cession states, have been insisting since other Council formations. On this subject, their meeting in Prague on 1 September the foreign ministers agreed that no inde- 2003 that the rule stipulating that there pendent Legislative Council should be shall be “one Commissioner with voting formed. Instead, the individual Council rights per country” should continue to meetings on specific topics will always apply in the European Commission, the serve as ‘Legislative Councils’ when they founding Member States, the United King- adopt legislative measures and public dom and Denmark are backing the Con- debates take place in that connection. vention’s proposal to reduce the number 3. The status and role of the future EU of Commissioners. The line of attack foreign minister. The most controversial adopted by the ‘smaller’ countries with issue is the incumbent’s position within the respect to retaining the traditional Com- Commission, the real questions being these: munity method is also reflected in the firstly, whether they should also have reservations expressed by Austria, the voting rights in areas that have nothing to Czech Republic, Lithuania, Latvia, Finland do with the CFSP, and secondly, whether a and Estonia, which are opposed to the vote of no confidence in the Commission by creation of the post of elected President of the European Council.

SWP Comments 17 November 2003

2 A second bone of contention pits the vis-à-vis the other ‘big’ countries in the United Kingdom, Ireland, the Czech Repub- Council more visible than in the past, since lic, Slovenia and Malta against the rest. the size of the population will count as a Here, the group headed up by the British direct factor alongside the respective coun- government is insisting that unanimous try’s single vote. Meanwhile, Poland and voting remains the norm in the Council Spain reject the associated ‘downgrading’ when dealing with issues to do with fiscal of the weighted vote they would enjoy and justice policy, social security policy, under the Treaty of Nice. When all is said foreign policy, security policy and defence and done, both countries are probably less policy, whereas other countries, led by concerned about maintaining their dis- Germany, Belgium and the Netherlands, proportional special status than about want to see qualified majority voting ex- retaining their ability to veto structural and tended to these areas as well. cohesion fund policies that are associated Latvia, Poland, Sweden the Czech Repub- with major spending. The IGC should focus lic and Hungary are sceptical about closer on this very connection, for both these or structured co-operation between indi- areas of policy will only effectively switch vidual countries on defence policy. Since from being subject to unanimous votes to the Anglo-German-French summit, in the majority decision-making system in principle the United Kingdom appears to 2013. be prepared to discuss this matter, though A provisional compromise could entail together with Spain it continues to clearly raising the required quorum for such reject a scenario in which the EU would financially weighty policies from 60% to have military structures independent of two thirds. Alternatively, the current NATO. system of vote weighting for these areas of Another point to bear in mind in con- policy could be retained, but at the same nection with ratification is the insertion of time slightly altered, to ensure that the a reference to God in the preamble. Poland, required quorum of weighted votes is Spain, Malta and Portugal are in favour of lowered from its present level of 74% to two such an inclusion, but Belgium and France thirds. That would leave Poland and Spain in particular are opposed to it. with their special status, but it would also Finally, in Germany rumblings in some become considerably easier to attain major- federal states, the CDU/CSU and some in- ities in the areas of policy in question, as fluential ministries are starting to raise the well as much more laborious to build block- spectre of broader opposition to EU reform, ing coalitions than under the rules set out especially where the Commission’s powers in the Treaty of Nice. in the areas of economic, social, health, criminal justice and immigration policy are concerned. Commission efficiency In preparation for EU enlargement, a Protocol was annexed to the Treaty of Nice, Countries’ relative clout leaving the composition of the Commission in the Council up to a unanimous decision by the Council There is a massive gulf between Spain and taken when the 27th Member State acceded Poland, on the one hand, and the other to the Union. By contrast, the draft Con- countries with regard to the planned intro- stitution contains more precise provisions duction of the so-called ‘double majority’ regarding the number of members of the from 1 November 2009 in qualified major- Commission. As from the next-but-one term ity votes taken in the Council (Article I-24). of office, from 2009 to 2013, the Commis- The principle of the double majority will sion is to consist of an ‘inner circle’ of 15 make Germany’s relative formative force Commissioners (including the President of

SWP Comments 17 November 2003

3 the Commission and his deputy and future oral procedure involving the full set of foreign minister), and an ‘outer circle’ of 10 Commissioners during their weekly Commissioners with no voting rights. The meetings. Far more decisions have resulted Commission’s argument against this, albeit from written procedures, empowerment or not one voiced explicitly, stresses the delegation. In this way, even in an enlarged requirements with respect to guaranteeing Commission, a reformed internal structure the representativeness of the group of Com- could impact positively on the Executive’s missioners. Accordingly, its view is that efficiency and decision-making capability. It each Member State should have one Com- should be left up to the Commission Presi- missioner with voting rights. However, the dent to decide on matters to do with size, focus here is not on representing the inter- structure, allocating duties and concilia- ests of the various Member States within tion proceedings. The respective sections of the Commission, but rather on the right of the Commission could then take decisions every Member State to have its own equal independently on all matters except for the (though mainly symbolic) representative, annual legislative programme, the draft EU mother-tongue ‘spokesperson’ in the shape budget, the Union’s financial forecast and of its respective Commissioner. According matters referred to the European Court of to this point of view, Commissioners are not Justice. Only in contentious cases, when the representatives of national interests, but President or another member of the Com- rather preferred intermediaries between mission indicated the need for a vote across the authorities in Brussels and their coun- all sections, should the EU Executive’s full tries of origin. membership debate the issue and take a In actual fact, the two-tier model pro- vote. posed by the Convention leads to a distinc- Conspicuous in these proposals is the tion being drawn between first-class and strengthening of the role of the Commis- second-class members of the Commission. sion President beyond the scenario set out This undermines the principle of collegial- in the draft Constitution. However, in view ity which is so vital if the European Execu- of the containment of the Commission tive is to function smoothly and retain its planned in the draft Constitution by internal coherence. The fear in such a formalising the European Council and its scenario would be that those countries not President, there can be little objection to allowed to appoint a member of the Com- this. In this respect, and bearing in mind mission might tend to be more willing to the pressure being brought to bear by the block Commission proposals in the Council 15 smaller countries to renegotiate the of Ministers. For this reason the Commis- matter, the Commission’s proposal seems sion suggests that its commissioners should worth considering. All the same, it does all retain equal rights. Nonetheless, a body little to defuse the repeated criticism of an comprising 25 Commissioners would have excessively large Commission. Even if the to adopt a decision-making procedure that Commission’s internal structure is im- was guaranteed to be viable in practice. proved, there seems some justification in This should be done by decentralising worrying that it might suffer even worse decision-making procedures. If various organisational problems after enlargement. groups of Commissioners were formed to After all, it’s worth reiterating that today, deal with specific issues or areas, decisions with just 20 Commissioners, it is already taken by all 25 Commissioners would only struggling to perform efficiently. A body be required in a few instances. In this con- comprising 25 – or even more – equal nection the Commission points out that members with voting rights conceals already in recent years a mere 3% (or there- greater dangers of inefficiency than a set-up abouts) of the 10,000 decisions it adopts boasting a leaner leadership. takes each year have been adopted in an If this criticism is accepted, then the

SWP Comments 17 November 2003

4 proposals made by the Convention on the in the Convention’s draft Constitution, composition of the Commission are defin- then many of the parties involved would feel itely pointing in the right direction. How- defeated. Those actors with an interest in ever, the compromise solution put forward seeing a stronger Commission cannot want by the Convention entailing a freeze on the this to happen, for the alternative to the maximum number of Commissioners and draft put forward by the Convention would the simultaneous introduction of different be the Treaty of Nice, whose Protocol on the hierarchical categories appears inconsistent enlargement of the European Union merely since it won’t make the Commission any provides for a unanimous decision by the smaller and thereby facilitate its organi- Council on the future composition of the sation, efficiency, visibility and collegiality. Commission in an EU with 27 Member The biggest problem in this connection is States, with the Commission not being a the inadequate definition of the rights and party to that decision. obligations of the Commissioners with no voting rights. Nonetheless, it may still be possible to Paths to a qualified majority find a ‘middle way’ for the IGC process. If The declared aim of the Convention was to the Commission is given the power to extend the number of qualified majority organise itself and also the capability to decisions taken in the Council. The objec- reform its mode of organisation, then for tive was to weaken the blocking potential the period starting in 2009 it will be of individual Member States and thereby enough to stipulate just the maximum create the essential procedural prerequi- number of Commissioners, which will be sites for deeper integration. All in all, the a lower figure than the number of EU Convention did succeed in extending Member States. Since the Commission will qualified majority voting, particularly in continue to be appointed in conjunction the areas of justice and home affairs policy. with the Commission President, the In addition, the transition clause added Member States in the European Council at the last minute by the Convention to and the European Parliament, there will Article I-24.4 of the draft Constitution also be sufficient possibilities to put together a provides for the switch from unanimous leading team in the Commission which can decision-making to the qualified majority subsequently, throughout its term of office, procedure following a unanimous vote to be monitored more closely than in the past this effect by the European Council. These by Parliament. Alternatively the heads of provisions do not go far enough in the eyes the other EU agencies (e.g. Europol, Euro- of the Commission, Parliament and also just, or the European Environment Agency) some Member States. The following policy could be involved in the overall ‘package’ of areas are also supposed to be placed on a the procedure for selecting members of the qualified majority footing: measures im- Commission. After all, the selection criteria plementing foreign and security policy, for these offices are also subject to the prin- provided they are negotiated at the in- ciple of equal rights, i.e. the symbolic repre- stigation of the EU foreign minister; sentation of the Member States in the EU measures designed to combat discrimina- institutions. Consequently, if the negotia- tion; amendments to the laws governing tions about the total number of all leading European or local elections; and measures EU bodies entrusted with specific powers to do with financial co-operation with third were more candid, the problem caused by countries. In other areas, by contrast, agree- the symbolic measures concerning repre- ment on transition periods for the auto- sentation could be substantially defused. matic introduction of majority decisions If the IGC were to fail in these respects or must only be reached in the respective renegotiate the institutional balance set out treaty. These include measures in areas

SWP Comments 17 November 2003

5 such as family law and arrangements the context of the ratification process. governing police co-operation. Since there Those countries whose parliaments or are differently weighted groups in all these citizens refused to ratify it would ultimately areas, it will hardly be worthwhile calling be forced to leave the EU. into question the compromise laboriously 2. The IGC will fail, overwhelmed by a hammered out by the Convention. flood of proposed amendments. The draft The desirability of extending the major- Constitution would then not be adopted ity voting principle to additional areas of and the Treaty of Nice would remain in policy is clearly at odds with the basic force. Those countries prepared to engage strategic notion that the draft drawn up by in integration could then enter into a the Convention constitutes the best result process of closer co-operation outside the that can be achieved through negotiations EU institutions and European treaties, in terms of the interim result attainable at along the lines established for Schengen. present. In this respect, the draft Constitu- There are several arguments in favour of tion reflects a current provisional arrange- the first option: Many countries would ment that should be viewed against the emerge as ‘winners’ if the draft Constitu- backdrop of the dynamic, ongoing develop- tion was adopted in its current form. Un- ment of European law. Those who advocate doubtedly not everyone’s wishes were ful- this view quite rightly fear that reopening filled by the work of the Convention. How- the discussions about majority decision- ever, on the other hand, the EU institutions making will effectively open Pandora’s box, and governments and parliaments of the and may even result in a step back, com- individual Member States can be said to pared with the compromise that has have emerged as winners. For while the already been reached. If any country calls national parliaments have been given into question the ‘package deal’ put major supervisory powers, the European together by the Convention, all govern- Parliament’s supervisory, legislative and ments will clamour for what they want. elective powers have been strengthened. Bearing in mind the short time available, Meanwhile, the Commission has gained the Italian Council Presidency should be further rights to take initiatives and also intent on preventing this scenario at all had its role as ‘the guardian of Community costs. Nonetheless, it is essential that some law’ consolidated. At the same time, the thought be given as to how the purview of respective governments can rejoice at the qualified majority voting can be extended. bolstering of the European Council and the Realistically, the obvious way to achieve creation of the post of a European Council this would be to simplify the procedure President, which will clearly boost their for amending the Constitution. influence in Brussels. And yet, this is an extremely unstable situation, for it repre- sents the compromise that can be reached Consequences at this point in time, on the basis of which In view of the widespread calls for amend- the future development of the EU will have ments and because of the shortcomings of to be reviewed and reformed when the time the draft Constitution drawn up by the is right. Convention, it seems highly unlikely that it Government representatives will have to will be adopted. At present there are two be outwardly positively critical in the IGC, conceivable scenarios: but at the same time inwardly prepared to 1. The IGC will succeed in subjecting the compromise. The representatives of the Constitutional Treaty to a few material European Parliament must ensure that the (but primarily linguistic and systematic) process doesn‘t end up being insufficiently changes and thereafter adopting it. The risk transparent. This may result in public pres- would then lie with the Member States in sure that will not permit the Conference to

SWP Comments 17 November 2003

6 fail. In addition, if the Italian EU Presidency Bearing in mind the dynamic nature of the is to succeed in overcoming the controver- process of European integration, this sial points in orchestrated discourse, the hurdle seems too rigid, concealing as it draft Constitution will be able to leave the does a real danger of paralysis in an EU IGC in its duly modified form. consisting of 25 or even more Member In the more pessimistic second scenario, States. Consequently, greater flexibility for the differences of opinion in the points future adjustments is required. The starting presented could not be overcome. The point here would be the Convention’s result would be a fresh debate on the EU agreed fragmentation of the Constitutional institutions and the distribution of power, Treaty into four parts and the resulting which would – in the best-case scenario – criticism that even changes made to the end in the kind of horse-trading that went operational part III would have to undergo on at the Nice Summit, and could end up the laborious ratification procedure. The reaffirming its rules. However, this would Convention failed to push through pro- raise questions about institutional balance posals concerning the simplification of the in the course of the EU’s further develop- procedure for reviewing the Constitution. ment and in fact turn that development Many Member States are genuinely fearful of process upside down. The rules of the allowing the possibility of all-too-rapid Treaty of Nice would no doubt then be changes being made to the provisions set out applied – to the letter – primarily by the in the Constitution, believing it to be a gate- larger Member States in an open, confron- way to further attempted infringements on tational manner, effectively forcing the their sovereignty by the EU. In addition, Commission to co-ordinate every single British government representatives will legislative proposal in advance with Berlin, attempt to further erode the transitional London and Paris. If even one of these three clause on the European Council’s simple countries vetoed the proposal in question, transformation of unanimous into quali- the ongoing decision-making process in the fied majority votes because the United Council would not have any prospect of Kingdom believes this would entail a risk of success. Moreover, the Member States the Constitution being amended ‘via the would try to impose themselves more back door.’ Consequently, there will be no directly, forcefully and aggressively on the choice but to stick to the stringent require- Commission and Parliament. This would ment of unanimous amendments and their not discredit the method of the Convention confirmation via ratification procedures in as such, but it would mean that the high all Member States for the first part of the expectations of the Convention would have Constitutional Treaty. to be seriously scaled back. The biggest winners emerging from such a crisis would probably be third countries, whose interest A way out of the dilemma in seeing deeper European integration is The IGC will reach its climax at the Novem- minimal and would be all in favour of the ber meeting of foreign ministers, by which creation of distinct, rival groupings within time broad agreement should have been the EU. reached regarding the various requests for amendments to the draft Constitutional Treaty. One decisive factor for the success of Constraints on further dynamism he endeavour is the agreement of the In the draft Constitution, amendments of actors involved on a joint future scenario the Constitution are made conditional on a for the enlarged Union. The familiar trio of unanimous decision by the governments in more democracy, the ability to take effec- question and ratification by the respective tive action, and transparency is clearly not national parliaments (see Article IV-7). enough to inject fresh momentum into the

SWP Comments 17 November 2003

7 EU on the basis of the Constitutional detailed and can, in their present form, Treaty. Neither can the desired scenario only apply to the next phase of the inte- entail an attempt to adopt a Constitution gration process. Such a move would also that holds good for the next 50 years. The have to respect the wishes of the smaller prospect of such an unchanging Constitu- and new Member States with regard to the tion would only be acceptable if the EU was composition of the Commission and the regarded as a Community rooted in shared, relativisation of the special role played by firmly established values. the President of the European Council. All But at heart the EU remains an economic provisions providing for unanimous and legal community. This state of affairs decision-making in the Council or Euro- may gradually be extended to include pean Council should also be transferred to functions such as a Community sharing the third part of the draft Constitution. the same security and social policy interests Unanswered questions about the sequence, if the centripetal forces in foreign and duration and allocation of Council presi-

© Stiftung Wissenschaft und security policy and social and economic dencies should also be set out in the third Politik, 2003 policy generate demonstrably higher costs part of the Constitution as organisational All rights reserved for the Member States than the pooling of tasks for the European Council. The con- SWP such expenditure within a shared EU. In ditions determining the environment for Stiftung Wissenschaft und other words, only when the Member States such authorisations to take effective action Politik German Institute for find that going it alone in the afore- can change rapidly. International and mentioned policy areas costs too much At the same time, it would make sense to Security Affairs and is not associated with any benefits with provide for a super-qualified majority of 5/6 Ludwigkirchplatz 3−4 a view to their respective national election of the Member States and people in the IGC 10719 Berlin Telephone +49 30 880 07-0 campaigns will their governments be pre- for the procedure for amending the third Fax +49 30 880 07-100 pared to engage in closer integration. part. Furthermore, a threshold value that www.swp-berlin.org If the developmental nature of the Union was lower than the sum of all Member [email protected] is recognised as a functionally determined States would have to be set for the entry Community of European citizens and coun- into force of any amendments. tries, this paints a different picture as If this were done, the first part of the regards the timeframe for the validity of Constitutional Treaty would be purged of the Constitutional Treaty and also any these technical details, and the third part resulting objectives with respect to its could be more simply made the object of ‘reformability.’ This in turn can be reflected the verification of the institutional pro- in the Constitutional Treaty by having the visions at the heart of the present contro- IGC draw a clear distinction between the versy. In any case, the new Member States virtually immutable principles of the first and their citizens would then have ample part and the constitutional provisions of its time, until the start of the next term of second part, on the one hand, and the insti- office in 2009, to gather experience with tutional provisions and authorisation to the Union’s new Constitution. take political action, on the other hand. Insight into the dynamic character of Consequently, one possible compromise the EU can only be gained over time on the for the IGC would consist of a substantial basis of the ‘application’ of the Consti- transfer of content from the first to the third tutional Treaty. Mechanisms designed to part of the draft Constitution. The shifted facilitate the review of the Treaty will clear content would be the provisions governing the road ahead for the Union’s dynamic the post of the European Council President, character and therefore constitute a sen- the numerical composition of both the sible alternative to the laborious scaling European Parliament and the Commission back and adoption of the Convention’s and the composition of the Council of compromise. Ministers, for these provisions are far too

SWP Comments 17 November 2003

8