Transcription of the interview with Philippe de Schoutheete — Part 3 — 1995–2010 (Brussels, 9 April 2010)
Caption: Transcription of the interview with Philippe de Schoutheete, Belgian Permanent Representative to the European Union from 1987 to 1997, carried out by the Centre Virtuel de la Connaissance sur l’Europe (CVCE) on 9 April 2010 in the studios of the Council of the European Union in Brussels. The interview, conducted by Hervé Bribosia, Research Coordinator at the CVCE, particularly focuses on the following subjects: enlargement to 15 Member States and the Ioannina Compromise, the Treaties of Amsterdam and Nice, the beginnings of the constitutional process and the role of the European Commission in the work of the European Convention, the institutional reform brought about by the Treaty of Lisbon, and the failure of the European Constitution and its consequences. Source: Interview de Philippe de Schoutheete / PHILIPPE DE SCHOUTHEETE, Hervé Bribosia.- Bruxelles: CVCE [Prod.], 09.04.2010. CVCE, Sanem. - VIDEO (01:38:09, Couleur, Son original). Copyright: (c) Translation CVCE.EU by UNI.LU All rights of reproduction, of public communication, of adaptation, of distribution or of dissemination via Internet, internal network or any other means are strictly reserved in all countries. Consult the legal notice and the terms and conditions of use regarding this site. URL: http://www.cvce.eu/obj/transcription_of_the_interview_with_philippe_de_schouthe ete_part_3_1995_2010_brussels_9_april_2010-en-48555563-04c1-487c-90c6- db8424f2d95a.html Last updated: 04/07/2016
1/23 Transcription of the interview with Philippe de Schoutheete — Part 3 — 1995–2010 (Brussels, 9 April 2010)
Contents I. Enlargement to Fifteen and the Ioannina Compromise...... 1 II. The Treaty of Amsterdam...... 2 III. The Treaty of Nice...... 8 IV. The beginnings of a constitutional process...... 10 V. The European Commission’s role in the work of the European Convention...... 11 VI. The institutional reforms introduced by the Treaty of Lisbon and the origins of these re- forms...... 13 VII. A look back at the failure of the European Constitution and its consequences...... 17 VIII. The end and the means...... 21
I. Enlargement to Fifteen and the Ioannina Compromise
[Hervé Bribosia] What memories do you have of the negotiations that led to the accession of Austria, Finland and Sweden on 1 January 1995 and to the ultimate withdrawal of the Norwegian application? Did Belgium have a particular interest in that process?
[Philippe de Schoutheete] Belgium was in favour of that enlargement; it seemed logical to us to bring in countries with good economic credentials and a European tradition, of course. The negotiations, in fact, were relatively easy, because those countries belonged to the European Free Trade Area, and so many issues were already resolved from the outset. Nevertheless, it was necessary to negotiate into the night on what were often secondary matters. I remember engaging in very lengthy negotiations on the transit of haulage vehicles over the Alpine passes in Austria, in which I became very well versed. My German colleague negotiated fishing quotas for Norway, which was a completely wasted effort, but it cost several nights’ work. It was all in vain because, at the end of the day, Norway did not join. I also have a happy memory of that time, because I was one of the two Belgian signatories of the Corfu Treaty on Accession, which is an important personal memory for me. One of the difficulties lay in the field of foreign policy, because we were dealing with countries that had a tradition of neutrality, and it was legitimate to wonder how neutrality was compatible with a common foreign and security policy. That question was seldom asked, if I may say so. Belgium, which held the Presidency at one stage during those negotiations — at the end of those negotiations — was put under pressure in several ways to ensure that these questions were not asked. And — rightly or wrongly — they were not asked.
[Hervé Bribosia] So February 1994 saw the adoption of the Ioannina Compromise, which reduced, to some extent, the size of the minority required to block the adoption of decisions by a qualified majority of the Council. What were the circumstances surrounding that compromise, and was it ever invoked, as far as you know?
[Philippe de Schoutheete] The circumstances were that it began with a Spanish demand, supported by the British. The Spaniards demanded that their weight should not be diminished and that their powers of veto should be preserved. My objection to the Ioannina Compromise is the underlying philosophy that it should be easier to block decisions, whereas the whole
2/23 philosophy behind qualified majority voting is about facilitating decision-making. It was a bad compromise, making us accept a position that we did not want — for reasons essentially connected, in actual fact, with bureaucracy. I am not at all sure that the Spanish politicians had thought hard enough about the position their administration was making them adopt. Up to a point, I believe the same held true on the British side. In the end, we opted for compromise. So did it serve a purpose? It is a bit like the Luxembourg Compromise — it has never been invoked, but it is there. Consequently, whenever an attempt is made to put together a qualified majority, there is a need to bear in mind that, in certain circumstances, someone could invoke that compromise. Therefore, although it is not a fundamental factor, I do find it harmful.
II. The Treaty of Amsterdam
[Hervé Bribosia] Another period of four years separates the entry into force of the Maastricht Treaty from the opening of the intergovernmental conference in Turin at the end of March 1996, a conference that would culminate in the signing of the Treaty of Amsterdam in October 1997. Why was there a need to revise the Maastricht Treaty so soon, and how was the agenda of that intergovernmental conference defined?
[Philippe de Schoutheete] The Maastricht Treaty itself, or at least a declaration annexed to the Maastricht Treaty, provided for the resumption of negotiations after five years, and Belgium was one of the countries that asked for this provision, partly because we were dissatisfied with the solutions reached in Maastricht, especially in the institutional domain. We believed experience would show that the system of pillars and the intergovernmental dimension were less effective than the Community method, which proved to be the case. For this reason, we had made provision for renegotiation. There were, however, at least two other absolutely decisive factors. One of them was the deliberation that followed the ‘no’ vote in the Danish referendum, which had revealed an antithesis between public opinion and political opinion, between the ruling or governmental elites and opinion as expressed in a referendum. That made everyone think about the need to reconcile the European integration process with public opinion. And so it was felt that there were things to be done in that respect. The other decisive factor was the establishment by the European Council at its Copenhagen meeting in 1993 of the Copenhagen criteria for the accession of new Member States from Central and Eastern Europe, which made it clear from that moment that we were heading for a new and very broad enlargement and that there was, therefore, a need to refine and strengthen the institutions in anticipation of that forthcoming enlargement. So there were three factors in play which led to a fairly quick resumption of negotiations — the fact that provision had been made for a review, that the Danish referendum had prompted reflection and that there was a new enlargement in prospect.
[Hervé Bribosia] At the intergovernmental conference which was to result in the Treaty of Amsterdam, I believe that you were once again the personal representative of the Minister for Foreign Affairs, as you had been at the IGC on Political Union that led to the Maastricht Treaty. And this time, as it happened, Eric Derycke was Minister for Foreign Affairs. What arrangements were made on the Belgian side for this intergovernmental conference?
[Philippe de Schoutheete] We prepared in largely the same way as we had done for Maastricht. Nevertheless, there were differences. For one thing, I did not have the same personal bond of trust that I had had with Leo Tindemans and later with Willy Claes.
3/23 Accordingly, while I was indeed the Minister’s personal representative, the relationship was somewhat different. At the Amsterdam negotiations, the level of coordination in the realm of foreign affairs certainly played a greater role than at the Maastricht negotiations. What I mean is that efforts were made to ensure that the instructions given to me were better coordinated. There was another reason for this, namely that the regional and community administrations had acquired new powers in the intervening period and had their own negotiating aims, particularly in the cultural domain and particularly with regard to the Committee of the Regions, and this made coordination all the more essential. These were negotiations in which the personal representative had less freedom, in a sense, and therefore, as I well remember, was under less stress. I had instructions, whereas at Maastricht, for most of the Maastricht negotiations, I actually received relatively few instructions. And, at the end of the day, a negotiator is no worse off for working to instructions. In all other respects, the coordination worked well, and the negotiations proceeded in much the same way as on the previous occasion.
[Hervé Bribosia] Were you involved in the preparatory work of the Westendorp Group?
[Philippe de Schoutheete] No, I was not the Belgian representative in the Westendorp Group. I necessarily kept a fairly close watch on it, because we certainly did have some interest in knowing the thrust of the group’s deliberations. I was also perhaps somewhat sceptical about the group’s influence on the sequence of events. The bottom line is that preparatory groups are useful, but political decisions are often taken by the Heads of Government, and the preparatory work provides a road map but does not prescribe decisions.
[Hervé Bribosia] So did Belgium have specific priorities at those negotiations?
[Philippe de Schoutheete] There was a Benelux memorandum that launched the negotiations, or rather was drawn up before the start of the negotiations. It included a subject to which I had devoted a lot of attention at that time, namely enhanced cooperation, in other words the possibility of including in the treaty the option for some Member States to move faster or go further than others — a very delicate matter, very difficult but, in my opinion, very important. And we had also introduced a citizenship aspect, the need to move towards a people’s Europe and, at the same time, to strengthen the role of Parliament to that end. There were issues of a rather cultural nature — the status of languages, which was obviously important to the Dutch and to our Flemish community, the equality of the official languages of the Union. So there were several matters, and one subject that interested both of the linguistic communities in our country was audiovisual media, and we ultimately obtained a protocol, annexed to the Treaty of Maastricht [sic, Amsterdam], covering audiovisual matters.
[Hervé Bribosia] It is a fact, I believe, that the Belgian position was that unanimous voting should be maintained on cultural matters. Is that not so?
[Philippe de Schoutheete] Absolutely. Absolutely.
[Hervé Bribosia] Which runs somewhat counter to the usual Belgian position.
[Philippe de Schoutheete] And, moreover, counter to the interests of both communities, I believe, but I did not manage to persuade them in this instance. I believe that unanimity on cultural matters tends to favour the major languages, because it is evident in practice that only the large Member States dare to exercise their right of veto against proposals which are not in
4/23 their interests. This applies especially to Germany, which has no wish to pay, if I may put it like that, no wish to contribute to the Community budget for cultural expenditure. I did try, but I could not persuade our country’s two communities that their true interests lay in a switch to qualified majority voting.
[Hervé Bribosia] As far as the organisation and execution of the work of the intergovernmental conference itself is concerned, did you note any differences in relation to the Intergovernmental Conference on Political Union that culminated in the Maastricht Treaty?
[Philippe de Schoutheete] Well, I have mentioned one difference, which was that I did not have the same kind of relationship with the Minister I was representing as I had had with Leo Tindemans. That was one thing that made a difference, and a second difference was the more useful and effective coordination that took place within the Belgian camp. There was a third difference, which was the fact that the role of the Foreign Ministers was greatly diminished. I think there was a gradual and rather surprising trend over the course of successive IGCs, in which the dominance or the weight of the Heads of Government became ever greater. And at Amsterdam, I believe I am not mistaken in saying that virtually all of the negotiating was done either by the personal representatives or by the Heads of Government, the input of the Foreign Ministers being extremely limited. This makes you think about the whole negotiating process, and in fact it was that kind of reflection which resulted several years later in the Convention.
[Hervé Bribosia] One of the major innovations of the Treaty of Amsterdam was the creation of a post of High Representative for the Common Foreign and Security Policy of the European Union. How did that come about? How do you feel about it in retrospect, particularly in the light of the performance of that function, which was held until recently by Javier Solana?
[Philippe de Schoutheete] At the time, we were strongly in favour of a reinforcement; after all, we had always been firmly in favour of strengthening the central structures for the coordination of foreign policies. We had already made the case for the creation of a secretariat, which was one of the fruits of the Single European Act. In this case, it was a matter of trying to give flesh to the objective, adopted at Maastricht, of a common foreign and security policy, which remained no more than a concept as long as the only coordination structure in Brussels was an extremely lightweight apparatus. The creation of a high representative who would be something of a coordinating figure for this common foreign and security policy seemed like a good idea to us. It was not entirely easy to negotiate, but in retrospect I am delighted that the post was created. It should also be said that Javier Solana developed the post further than could have been expected initially. When such posts are created, the first incumbents are crucial, because if they are diffident and rather reticent in asserting themselves, the post becomes one of minor importance. If, like Javier Solana, they are both ambitious and diplomatic, in the sense of being able to respect the sensitivities of Member States while trying to maximise the contribution of the post, the result is a real transformation within the institutions. I believe it is true to say that the personality of Javier Solana, operating on the basis of the Treaty of Amsterdam, made that post of High Representative an important element of Community life and ultimately of the international scene too.
5/23 [Hervé Bribosia] And what about defence? Was progress made on that score in the Treaty of Amsterdam, given the presence at the negotiation of the Maastricht Treaty of new Member States defined as neutral, as we mentioned before? More particularly, how was the relationship between WEU and the European Union envisaged?
[Philippe de Schoutheete] The Benelux memorandum I referred to a moment ago recommended the explicit and highly formal incorporation of WEU into the European Union. And we certainly saw this as something that ought to be done. WEU was an old and hence venerable institution, but it had lost much of its raison d’être. It seemed to us that it should be merged with the European institutions so as to give substance to this ambition of a common foreign and security policy. This posed difficulties for the new Member States — for the Scandinavian countries and Austria — which had a tradition of neutrality. This was not because of the institutions but because of Article 5 of the WEU Treaty, which imposes a fairly binding obligation of collective mutual defence. That obligation caused them difficulties, because it is inherently incompatible, of course, with neutrality. If you undertake to defend each other, you can no longer call yourselves neutral. So we were very much in favour of merging. The new Member States were extremely fearful of that prospect in view of the impact on domestic public opinion, and they made an astute counter-proposal quite early in the negotiations, suggesting that they accept what were known as the Petersberg tasks, that is to say a number of peacekeeping obligations. The counter-proposal ultimately triumphed, because it gave a certain security and defence dimension to the foreign policy of the Union, which is what we were seeking, without compelling the neutral countries to accept a commitment to mutual defence. So I believe it was a good compromise. And I think we managed to advance European ambitions in the realm of defence without compromising that neutrality, which had become a little theoretical in actual fact but to which public opinion in those new member countries was very strongly attached. I believe those negotiations did us all credit.
[Hervé Bribosia] You mentioned, as an innovation introduced by the Treaty of Amsterdam, or rather in connection with the Benelux memorandum, this mechanism of enhanced cooperation. I believe that the Benelux memorandum speaks more of differentiated integration in general terms. So who came along with that idea, and what need was it designed to meet?
[Philippe de Schoutheete] The idea is an old one. If I remember rightly, Willy Brandt was the first to moot it in the 1970s, the early 1970s, when he suggested that there might be scope for advancing the integration process by means of what he called abgestufte Integration, that is to say graduated integration, in which countries could move through the successive stages of integration at their own speed. And a little of that idea soon surfaced again in the Tindemans Report and in Altiero Spinelli’s draft treaty. So it is an old idea. It obviously grew in importance as enlargements took place or when new enlargements were in the offing. At that time, I was absolutely sure in my own mind that a mechanism had to be found for that purpose, because the prospect of eastward enlargement was surely going to make the whole European Union considerably more heterogeneous and so there was a need to find ways to make progress. Nor did I underestimate how difficult it would be to find those ways, particularly in institutional terms. That, then, was a very important element of the Amsterdam negotiations — perhaps the most difficult, the most important and the newest, since there had never been anything like it before. And that element, to some extent, played the same role in the Amsterdam negotiations as subsidiarity had played at Maastricht. In other words, it was a new concept which was debated, staunchly advocated by some, particularly the Benelux
6/23 countries, and regarded with a great deal of suspicion by others, who thought it was designed as a weapon against them. I recall that Ireland in particular, when it held the Presidency for part of the period of the Amsterdam negotiations, never wanted to make any proposals whatsoever regarding enhanced cooperation, saying that the subject was too sensitive. So that was a difficult part of the negotiating agenda. Accordingly, the compromise enshrined in the Treaty of Amsterdam was probably the only one that could have been reached. If truth be told, the mechanism was never used, and treaty articles that are not used are clearly dead letters in a sense and have to be questioned. But I remain convinced today that it was a problem, that it is still a problem and that the existence of that option of doing things involving some Member States and not others has probably encouraged consensus in some instances, just because there was an alternative. It is a bit like qualified majority voting. The important thing is not to vote often but to be conscious that issues might be put to the vote and that it is consequently better to seek consensus. I think the legal existence of that option of progressing with some Member States but without others has, in some way, put those others under a degree of pressure.
[Hervé Bribosia] So how did you feel about the failure — I believe I can call it that — on the major, difficult institutional issues, which were once more deferred to a later intergovernmental conference, even though they were the primary reason for convening the IGC in 1996?
[Philippe de Schoutheete] In the institutional domain, it is always very difficult to speak of failure or success, because there is invariably a bit of both. There were certainly institutional advances in the Treaty of Amsterdam, particularly some very tangible progress with regard to the powers of the European Parliament with the generalisation, or rather the extension, of the codecision procedure. That was not unconnected with our desire to bring Europe closer to the people. Giving the people’s elected representatives more powers is one of the ways to do that. So there were a number of advances. The creation of the High Representative certainly represented institutional progress. That said, there were also many failures. In particular, one institution with which I had a great deal to do at that time was the Commission, because I thought — and I still think, by the way — that a Commission as large as the one that would result from enlargement would be unworkable. The Benelux memorandum called for the preservation of one commissioner per Member State. In the course of the negotiations, I believe I managed to persuade my Prime Minister — Jean-Luc Dehaene was in office at the time — that it lay in the interests of countries the size of ours, small and medium-sized countries, to have a strong Commission, and that a strong Commission meant a Commission with fewer members. By the end of the negotiations, I think Belgium was coming round to that view, and we later played some part in efforts to move in that direction. But it is true that there was always a sense of frustration — which explains, incidentally, why there was such a succession of negotiations. Why was there almost constant negotiation from 1990 to 2009? Because there was a real awareness that the institutions should be reformed, and because every effort did deliver some progress. Nevertheless, we were left with a great deal of uncertainty about the future functioning of the Union. I therefore concluded at the time, and I still undoubtedly conclude to some extent, that the integration momentum, the desire to press ahead on the institutional front, was less powerful in those years than it had initially been.
[Hervé Bribosia] To round off your thoughts on the Treaty of Amsterdam, are there any other important results that spring to mind or simply other defining moments during those negotiations?
7/23 [Philippe de Schoutheete] Well, you know, there are plenty of defining moments in negotiations. Certainly, bringing at least part of the third pillar — police and judicial cooperation — into the Community framework was an important step, and its importance has been underlined over the intervening years. I had always thought that the third pillar was not entirely comparable with the second. The second is an essentially executive pillar: the common foreign and security policy is a matter for the executive in all our countries. Police and judicial affairs are — at least in part — legislative matters. And, in such cases, there is far less justification for a purely intergovernmental approach. That is what Amsterdam recognised and what subsequent instruments recognised. This was one element. The other was that opting out was mainstreamed to a degree by the incorporation of Schengen, which was very important. It must not be forgotten than Schengen had been developing since 1985, that there was a Schengen administration in Brussels which already comprised more than 200 officials at the time of the Amsterdam negotiations and that we were seeing the establishment in Brussels of a separate administration from that of the Community but one which addressed some of the same problems, that is to say those relating to free movement of persons. It had certainly been a source of concern to the Belgian Government — and to many others too, I think — to see this proliferation of institutions dealing with related subjects. The incorporation of Schengen, then, was important and was achieved by Amsterdam, albeit at the cost of opt-outs by Denmark, Ireland and the United Kingdom, which rather mainstreamed the idea of opting out. I am not sure that this was a good thing. It was unavoidable, but it is still a weakness in the system.
[Hervé Bribosia] You mentioned the Schengen Agreements, which were launched outside the framework of the European Union. Was that a good thing or a bad thing?
[Philippe de Schoutheete] It was a very good thing. You have to do things when and how you can. The desire to establish a borderless area was implicit in the Treaty of Rome but had not been entirely fulfilled as far as the free movement of persons was concerned. From 1985, it was the wish of the five original Schengen member countries to achieve real abolition of border controls, and that was done. This, by the way, was tantamount to an extension of the Benelux arrangements, because Benelux had achieved that goal in the 1960s. If it had been proposed within the Community, it would very definitely have been rejected by Britain, and since that was an area, a subject, where unanimity was needed, nothing could have been done. It was done outside the framework. It was developed, and eventually all the Member States were persuaded, including those which did not wish to be part of it, to incorporate it into the treaty, with scope for opting out. This would never have happened if it had not been decided initially to do it outside the Community, and I believe one of the ways in which the European Community can be advanced is by starting, when there is no alternative, outside the treaty in a spirit of openness in the hope that the new mechanism will be incorporated a little later.
III. The Treaty of Nice
[Hervé Bribosia] The entry into force of the Treaty of Amsterdam coincided, I believe, with your departure from the Permanent Representation, which marked the end of your career in the Belgian Diplomatic Service. But that was not the end of the story, because, scarcely two years later, you became an adviser to Michel Barnier, who was the European Commissioner with the portfolio covering institutional affairs. In this capacity, you followed the negotiations leading to the Treaty of Maastricht [sic, Nice] and the work of the Convention on the Future of Europe that was to culminate in the Constitutional Treaty. My first question in this context
8/23 relates to the Group of Wise Men formed by Romani Prodi, who was about to be formally appointed as President of the Commission; the group was created for the purpose of reflecting on the institutional implications of enlarging the Union, which brings us back to that subject. Are you familiar with the circumstances in which that group, chaired by Jean-Luc Dehaene, was created and how it worked and then how its report was received?
[Philippe de Schoutheete] The formation of the group was an initiative taken by Romano Prodi when he was appointed as President of the Commission. I imagine that many people suggested to him that he do something along those lines. It was a matter of reflecting, ultimately, on the loose ends left by the Treaty of Amsterdam in the institutional domain and in the light of the forthcoming enlargement. So Romano Prodi wanted to have a document that would guide him through the five-year term of the Commission over which he was to preside. He asked Jean-Luc Dehaene to chair the group, whose two other members were the former President of the Federal Republic of Germany, Richard von Weizsäcker, and former Labour cabinet minister, Lord Simon. These truly were wise men, by which I mean that the three of them had diverse political experience and real commitment to Europe. They were, in short, eminent persons who were also authoritative figures in their own countries. Jean-Luc Dehaene asked me to act as secretary to the group, which I did with interest and pleasure. It was a Commission group, in that the Commission had appointed it and the Commission ran it. I was therefore recruited on a temporary basis by the Commission to act as its secretary. I was quite pleased with that exercise, because we produced the report within six weeks, which is, after all, a short time for a document that had to be approved by three different people with different histories and even slightly different political leanings. So I believe we fulfilled the mandate we had received from Mr Prodi, who had asked for a fairly quick process. He had asked for the report to be ready around mid-October, and we did have it ready by mid- October. In my opinion, that report on the institutional implications of enlargement was a good summary of the problems facing us which also outlined a number of solutions. Now then, you asked how well it was received. This type of wise men’s report never meets with 100 % acceptance by the Member States but, as they always do, it served as a reservoir, as a pool of ideas for subsequent action. And in re-reading that report, I certainly do see that a number of proposals or ideas which were mooted then, particularly with regard to simplification of the treaties, were implemented in successive treaties. I therefore believe that it was a useful exercise. I think it was a well-executed exercise, and I have no cause at all for dissatisfaction when I think back to that period.
[Hervé Bribosia] The main purpose of the Treaty of Nice was to complete the institutional reform that the Treaty of Amsterdam had left unfinished. As Michel Barnier’s adviser, were you able to follow those negotiations closely? What are your memories of them?
[Philippe de Schoutheete] No, I did not follow the Nice negotiations closely. Michel Barnier was not directly involved in the negotiations. In point of fact, the Commission is never directly involved in an intergovernmental conference. It is present, it follows developments and it makes proposals, but it is not one of the principal negotiating parties. I followed that treaty out of interest in European affairs and through the contacts I had with my colleagues. I do not see Nice as the most successful of European treaties. It served in a curious way as aversion therapy, in the sense that the difficulty of the Nice negotiations prompted reflection on certain changes to negotiating processes. You will remember how Tony Blair emerged from the four-day series of meetings in Nice and said, ‘We cannot go on working like this.’ This was plainly the case, and I, for my part, had been convinced of it for a long time, especially since Maastricht. I believe that the increasingly great responsibility entrusted to the
9/23 Heads of Government for the negotiation of international legal instruments of this kind often resulted in formulations that were vague and difficult to apply. For this reason, I had long been arguing for changes to the negotiating process, and I believe Nice served to demonstrate that it was not possible to go on working like this and therefore led to the later development of the Convention. From that point of view, Nice was a useful instrument. Besides, there were obvious good points in the Treaty of Nice, particularly the new reinforcement of the powers of the European Parliament. But the general image conveyed to public opinion by those endless late-night negotiations on incomprehensible texts tended to dampen public interest in European affairs, and that was a great pity.
[Hervé Bribosia] The Treaty of Nice, moreover, was rejected by referendum in Ireland. Had they made some contingency provision for another failure, and could they avail themselves of the precedent that had been created when Denmark had to repeat its referendum on the Maastricht Treaty?
[Philippe de Schoutheete] The difficulty lies in knowing what is meant by ‘they’. If ‘they’ is a collective term for all the non-Irish political leaders, the answer is no. Fortunately, there was no debate on what to do in the event of failure — firstly, because such debates are very difficult and, secondly, because they can be somewhat conducive to failure, that is to say the debate would convey the message to the Irish population that there was a plan B, which would be activated if they were to vote ‘no’ again, whereas in fact there was none; there was no plan B, any more than there was a plan B for the subsequent referendums. This clearly does not prevent some people from considering what to do in such an eventuality. It is, moreover, an issue that can still be considered today. What should be done if, in a given case, an international treaty is approved by all but one of the Member States and is formally rejected by that one state? That poses a host of problems, and I believe the idea of simply abandoning a treaty is not as straightforward as it seems. In the first place, it is not entirely democratic, because it overrides the democratic will of a number of countries to change things. The issue opens up all sorts of scenarios, including one in which the institutions have to be reconstituted without the representatives of the recalcitrant state, which poses huge problems, but it is a solution that cannot be ruled out intellectually, even though there has never been any attempt to formalise it.
[Hervé Bribosia] For the Maastricht Treaty, too, was there …?
[Philippe de Schoutheete] Yes, between the two Danish referendums, because it was the first time that had happened. It should be appreciated that European political opinion had been severely jolted at that time. On the evening of the first Maastricht referendum, I was having dinner with Willy Claes and a visiting Portuguese minister. As the meal went on, the news being passed to us indicated that the Danish people appeared to have voted ‘no’, even though the Danish Parliament had approved the treaty by a majority of four to one only a week or two earlier. And Willy Claes and his fellow minister began to ask some fundamental questions. How far can a politician go in exercising leadership if he knows that he is not supported by domestic public opinion on an issue he regards as crucial? And how does it happen that public opinion is against something when political opinion is for it? These are questions that exercised many people in the summer of 1992, questions to which there have never been any clear-cut answers, either then or now. For my part, yes, I did think about what should be done in the event of a second rejection by the Danish people. And I thought about ways of reconstituting a European Union with institutions that remained almost identical, except that they excluded Denmark.
10/23 IV. The beginnings of a constitutional process
[Hervé Bribosia] After the Treaty of Nice came the launching of the constitutional process, and I would like to return to the report from the Group of Wise Men chaired by Jean-Luc Dehaene that we mentioned a moment ago, because, in the wake of that report, the European Commission asked the European University Institute in Florence to conduct its study on simplification of the treaties. What motivated the European Commission to do that? And what memories do you have of the working meetings of that group of professors, at which you represented Commissioner Michel Barnier?
[Philippe de Schoutheete] The motivation was already set out in the Wise Men’s report. One motive was the desire to make the instruments more comprehensible by grouping together the essential elements of the Treaty and separating them, if possible, from what were, to some extent, the accessories, namely the specific articles on EU policies. That was one thing. At the same time, the Group of Wise Men had expressed the hope that this restructuring could lead to a differentiated revision procedure, whereby the core text of the treaty could not be amended without a unanimous vote and national ratification of the adopted amendments, whereas the articles deemed to be of lesser importance could be the subject of a simplified revision procedure. This was the basis on which the Commission asked the Florence Institute to see what shape a codified and simplified treaty might take. I have some very good memories of intellectual debates at those meetings in Florence with eminent legal scholars — truly eminent legal scholars — who were well versed in European law. There was also the eternal debate between the lawyers and politicians, with the lawyers saying, ‘If you change one comma of the Treaty, you are amending the Treaty, and you do not know how the Court will interpret that.’ Then you had the politicians saying, ‘You must still try to find me some kind of reorganisation, a restructuring of the Treaty that makes its provisions comprehensible, that separates the essential from the accessory, without altering the substance of the Treaty.’ This debate, then, was intellectually fascinating, and I believe that the study conducted in Florence, by demonstrating that codification was possible, served to produce something more or less readable. And that, I think, was an inspiration for subsequent work, particularly that of the Convention.
[Hervé Bribosia] So parallel to this academic study on the simplification and consolidation of the treaties, albeit with no apparent connection, a Charter of Fundamental Rights was being drafted within a forum that ultimately gave itself the designation ‘Convention’. That Charter was proclaimed in Nice by the European Council, which also adopted a declaration on the future of the Union. One year later, it was the Laeken Declaration, I would say, that officially launched the process leading to the second European Convention. What memories do you have of that period? Was there any sign yet of initial constitutional stirrings? And, since you were adviser to a European Commissioner, what was the Commission’s stance on this matter?
[Philippe de Schoutheete] My own memory of that period is that I had a great deal of interest not only in the substance of the Charter of Fundamental Rights but also in the way it was drawn up. As I have just said, the way in which European legal instruments were drawn up seemed to me to merit criticism. And indeed I had criticised it in print, starting with the negotiation of the Maastricht Treaty. But now we were seeing the emergence of another way to draw up instruments, which were finally accepted as such by the European Council and thereby acquired a certain value in terms of legally binding force but which, because a
11/23 Convention had been appointed, were drawn up by national political delegates without a diplomatic negotiating process. I thought it was an extremely promising initiative. Besides, the fact that the Wise Men’s report had been acted upon was clearly indicative of a desire to make European citizens more aware of the benefits of European integration. The Charter of Fundamental Rights was obviously very important too from that point of view, and it really did seem to resonate with public opinion at the time. So I believe that the procedure was extremely appealing. I was not part of the Commission’s team for the negotiation of the Charter of Fundamental Rights, but my memory is that the Commission, like me, regarded it as a promising innovation in the process of drafting European instruments.
[Hervé Bribosia] As a former Permanent Representative of Belgium, were you consulted or briefed on the work that was done under the Belgian Presidency on the Laeken Declaration? That was in December 2001.
[Philippe de Schoutheete] When you have spent 40 years in a government ministry, you always maintain some contacts, and I had — and still have — many friends at the Ministry of Foreign Affairs who occasionally consult me. So yes, I followed it from a distance and with a great deal of interest. I also have to say that the personal dynamism of the Prime Minister, Guy Verhofstadt, was a major factor in the creation, in the formulation, of that Laeken Declaration, which undoubtedly had important consequences, because it formed the basis of a new negotiating practice for amendments to the European treaties. That is by no means an insignificant credential. I believe it was a good declaration, launching a process that lasted 10 years, which no one would have expected at the time, and which finally culminated in a treaty, the Treaty of Lisbon, which I regard as a major milestone in the process of European integration.
V. The European Commission’s role in the work of the European Convention
[Hervé Bribosia] Michel Barnier was one of the European Commission’s two representatives at the European Convention and, in particular, in the Praesidium of the Convention, António Vitorino being the other. What steps did the Commission take to influence the work of the Convention, and what strategy did it follow?
[Philippe de Schoutheete] The Commission took steps. At the beginning, its position was relatively strong: there were two Commissioners in the Convention, but more importantly two Commissioners in the Praesidium. It was fairly clear — and, on this point, the Convention on Fundamental Rights acted as a precedent — it was fairly clear that the Praesidium was going to be very important in how proceedings would progress. It was definitely in a position of strength there. It was also, to some extent, in a position of weakness in the fact that the President of the Convention and of the Praesidium, Mr Giscard d’Estaing, was not among the class of politicians who are fiercely protective of the Commission’s rights. Mr Giscard d’Estaing was more in the French intergovernmental tradition. The Commission’s position was, therefore, at the same time one of strength and one of weakness. I think the Commission defended itself well. It formulated a number of proposals when it was necessary to do so. It chaired working groups, and it should be noted that the bulk of the work of the Convention was conducted in working groups. I think, therefore, that it was able to play its part, aided by other members of the Praesidium who were intent on helping it, including Jean-Luc Dehaene, who was one of the Praesidium’s Vice-Presidents. So I don’t think things went too badly from
12/23 the Commission’s point of view. Especially given the degree of risk inherent in a new procedure in which the Commission was not fully aware of the role it might be able to play.
[Hervé Bribosia] Do you remember the saga of the ‘Penelope’ draft — the full draft of the European Constitution that the Commission drew up more or less in secret and circulated in what some people viewed as an inappropriate manner, at an inappropriate time?
[Philippe de Schoutheete] The Penelope draft was essentially the work of François Lamoureux, a Commission official who arrived with Delors in 1985; he had represented the Commission in the Maastricht negotiations and was a man of lively wit. He’s no longer with us. He was very good at providing a conceptual framework for European affairs. This draft was very interesting in many respects, very methodical. I had seen some of the development work: I was fairly close to François Lamoureux, and he had consulted me on or shown me some parts of it. Everything was progressing well, not in secret — there is no secrecy in European affairs — but in a relatively confidential manner. And the project was intelligent and cohesive. Was it unveiled at the right moment? On that point I have my doubts. I think that the thing that came as something of a shock to some people was not so much the content of the project but the timing of its unveiling, that is to say a time when the Convention was already at a fairly advanced stage; this had the effect of making the project appear to be a counter-proposal to the one in the process of formulation. It hugely irritated Mr Giscard d’Estaing, and, as a result, I am not sure that it was particularly productive, although many of the ideas contained in the draft were worthy of discussion in themselves. However, like all European drafts of this kind, as with all the Wise Men’s reports, their purpose is to outline ideas for subsequent development.
[Hervé Bribosia] Were the two Commissioners representing the Commission in the Convention fully up to speed with and involved in the exercise?
[Philippe de Schoutheete] I cannot believe that they were not. My own awareness of it came from my personal contact with François Lamoureux, but the draft must have been discussed within the Commission. I don’t have any particular recollection, but the Commission itself must have discussed it on at least a few occasions.
[Hervé Bribosia] Michel Barnier chaired the European Convention Working Group on Defence. How did the proceedings of that group develop? What were the issues that were addressed?
[Philippe de Schoutheete] The issues were fairly basic, and it was somewhat paradoxical that the group was chaired by a Commission representative, given that the Commission has traditionally had very few powers in defence matters. In my view, this group worked well. Debates were extremely interesting, especially where it came to learning what the maximum leeway in defence matters was, the extent to which neutral countries were willing to accept mutual guarantees in defence matters, how enhanced defence cooperation could be implemented — ultimately this was referred to in the Treaty as ‘structured cooperation’. Within the working group, the United Kingdom was, for once, very demanding. It wanted things to be done in defence matters, very much in an intergovernmental spirit, but you could sense a real drive from the country. Yet at the same time it was extremely difficult because the diversity of the enlarged Union was even more obvious than during the Amsterdam negotiations. I am, therefore, fairly pleased with the result and especially the concepts underlying structured cooperation which both resolved what, for me, were the key points,
13/23 namely that the heart of the European Union was a guarantee of mutual defence, and yet those countries that, for reasons of domestic policy and political tradition, did not wish to enter into that type of commitment were allowed not to be bound by it. To my mind, it was a good balance, and perhaps, looking back, the fact that the group was chaired by the Commission, an institution that had no direct interest in or traditional position in the matter, was an advantage.
[Hervé Bribosia] What was the reason for the British interest in defence matters at the time?
[Philippe de Schoutheete] Great Britain has always been of the view that things had to be done at European level in matters of defence, provided that the approach was very much intergovernmental and, by implication, provided that Great Britain plays a key role in it. Provided those two conditions were met, Great Britain was prepared to make progress. Historically, it had pushed for coordination in terms of arms supplies, manufacture and other matters. It saw an opportunity to make progress in that area and to do so in an intergovernmental framework; despite everything, the Convention was a framework in which the institutions, and especially the Commission, played only a marginal role. I can’t remember how many Convention members there were in all, but ultimately it included only two Commissioners, which is not many.
[Hervé Bribosia] Did the Working Group on Defence work with the Working Group on EU External Action chaired by Jean-Luc Dehaene?
[Philippe de Schoutheete] Yes, obviously there was some overlap between the topics covered by the two working groups, and Jean-Luc Dehaene obviously talked to Michel Barnier. Personally, I acted as something of an adviser to Michel Barnier in his affairs, and I have always had a good relationship with Jean-Luc Dehaene. So yes, I would say that the two working groups had something of a symbiotic working relationship. Despite everything, the issues raised, especially the institutional issues, were the same in both groups.
VI. The institutional reforms introduced by the Treaty of Lisbon and the origins of these reforms
[Hervé Bribosia] The institutional innovations include the establishment of the post of High Representative of the Union for Foreign Affairs and Security Policy, a role with two hats, given that the incumbent is required to be the permanent chair of the ‘Foreign Affairs’ Council as well as Vice-President of the European Commission. How did that innovation come about?
[Philippe de Schoutheete] This innovation was an important one, all the more so given that, at the time, it was still referred to as the Minister for Foreign Affairs, Minister for the Union, Minister for Foreign Affairs of the Union. It was an innovation that I viewed as both logical and interesting. Logical because one of the weaknesses of external action by the Union is the division between the economic and political fields, a very artificial division in the field of international relations; and interesting because it could help to move the perception of the Union’s external image forward and provide a response to the question that Henry Kissinger always told me he never actually asked about Europe’s telephone number. The slightly paradoxical aspect was that the two then incumbents of the posts we sought to merge, Javier Solana as High Representative for Foreign Policy and Chris Patten as the Commissioner for External Relations, both attended both working groups, I seem to remember — the Working
14/23 Group on External Policy and the Working Group on Defence — to say that the merger was a bad idea. And the two groups did not agree with their argument. I can understand why: I, too, felt at the time that, if they both said it was a bad idea, then maybe it was a good idea. In other words, both bureaucracies were obviously extremely concerned. The Council bureaucracy behind Solana feared having a Commission Vice-President in charge, something they had always feared. The Commission bureaucracy feared potential intergovernmentalisation of all external relations as a whole. So there were fears on both sides. Generally speaking, when there are fears on both sides, it’s often because a balancing point is close at hand. They were more preoccupied, as I still am, by the capacity to manage the merger of the two posts: they are important posts, and, in the coming years, we will see if the arrangement is manageable and how it can be managed. But I still believe that the decision was a good one. We will have to see how it works out in retrospect, that’s all. Right or wrong, Europe has evolved with a Community branch based on treaties starting with the Treaty of Rome, and an intergovernmental branch, namely the foreign policy dimension that started with the Davignon Report of the 1970s. Looking back, there has been a continuous closing of the gap between the two. At the outset, they were totally separate: the two structures had no contact in principle, except for the Commission presence in political cooperation. Over time — and we have discussed the stages that followed: the Single Act, Maastricht, Amsterdam — there has been a closing of the gap. The ultimate closure, evidently, lies in the merger of the high-level posts. Therefore, in some ways, it was, in my eyes, the culmination of what I regarded as a gradual process that had taken place over the years, a process in which I had been a player. I was in favour of it, and still am. I think that the risks of intergovernmentalisation of the Commission or the risks of communitarisation of the Council were legitimate concerns on the part of the bureaucracies involved, but that we could seek to overcome them.
[Hervé Bribosia] One of the High Representative’s several functions will be to lead the European External Action Service. Is that a good idea as well?
[Philippe de Schoutheete] Yes. I am convinced that it’s a good idea. Since it is not in existence yet as we speak, and proposals have just been tabled by Mrs Ashton, it is very difficult to say whether it will succeed. But I do indeed believe that a common foreign policy — something we are supposed to have been pursuing since Maastricht — needs joint diplomacy; there is no foreign policy without diplomacy, and the external dimension needed to be consolidated. I was, for example, fairly shocked to learn that there was a delegation of Commission observers as well as a delegation of Council observers at the United Nations. When you think of the image that that portrays to the rest of the world — and the UN truly is the rest of the world — it’s not good. And the fact that we have been unable or have not really made any attempt to merge the roles, for various reasons, was, I thought, a weak point. On that point, too, it was clear at the outset that the process would be very difficult. And indeed, that has proven to be the case by everything that has happened since. We are contending with Member States’ ambitions, the Council’s ambitions and fears, the Commission’s ambitions and fears. Nonetheless, I think the situation will evolve, and I think it will give the European Union a more cohesive image. The Commission delegations will become, have already become, Union delegations. That’s the name they use, and it is not without significance. I think it will gradually fall into place, despite all the difficulties that are always encountered when bringing a new concept into the world.
[Hervé Bribosia] Another major innovation of the Constitutional Treaty that emerged from the European Convention and was reiterated in the Lisbon Treaty was to make the European Council, and a stable Presidency to lead it, part of the institutional fabric. You have published
15/23 several articles on the European Council. I believe you are an expert on the subject. How should we view this development and how did the idea for it come about within the Convention?
[Philippe de Schoutheete] It came about within the Convention under the name ‘ABC’ because it was initially proposed by Aznar, Blair and Chirac. The smaller Member States of the Union viewed it with suspicion because it originated with three large Member States and it was entirely credible that the idea behind it was to consolidate, confirm and strengthen the influence of the large Member States in the Union. It was initially rejected by the smaller countries; in particular, there was a Benelux memorandum stating that in no circumstances would the Benelux countries accept a stable Presidency of the European Council. As a diplomat of long standing, I remember telling my younger colleagues who were behind the memorandum that you must never say ‘never’ in diplomacy. Indeed, six months later, they accepted it. Now I believe that, in terms of the conditions under which it was accepted, which were slightly different from the initial proposals put forward by the large Member States, it was completely acceptable, and I am convinced that, today, given the holder of the post, Belgian diplomacy thinks it an extremely good idea to have a semi-permanent President of the European Council. An overview of the institutional development of the European Council during the decades since 1974 shows that its power has been steadily increasing. And that, since the 1990s, it has, in fact, become the driving force of the Union. It has, in fact, assumed in part the role that the Commission played in the first few years of European integration. Since that point in time, the fact that the Council took place only four times a year when the Heads of Government met, and there was no permanence about it whatever, came to be an institutional handicap. At the same time, its role had become too extensive, like it or not, and there are arguments to be had about the justification for this change, but it has happened nonetheless. The European Council has become the principal driver of innovation in European matters. Since that point in time, it has, I believe, been desirable for there to be a degree of permanence about it, as provided by the President. Therefore, I think it is a good idea. Steps had to be taken to ensure that it was neither a handicap to the Commission nor the source of rivalry with the President of the Commission. We had to ensure it was not a means of enabling the large Member States to dominate. From that point of view, I believe it was logical for the first permanent President of the European Council to come from a country that has historically had a harmonious relationship with the Commission, a country that is not one of the Union’s large countries. I am, therefore, very happy at the outcome, namely that Mr Van Rompuy is President of the European Council. And I believe that it is in line with the reasoning ultimately pursued by the Convention. By implication, the small Member States have accepted the post in exchange for compensation in the matter of qualified majorities, etc. and with something of an implicit assurance that the post would not, not always in any case, be held by a large Member State.
[Hervé Bribosia] Belgium is readying itself to take over the rotating Presidency of the Union in the second half of 2010. Has this role perhaps lost some of its lustre following the Treaty of Lisbon reforms, especially in view of the permanent Presidency of the European Council and the permanent Presidency of the Foreign Affairs Council?
[Philippe de Schoutheete] Yes, I don’t like the word ‘lustre’. Because, ultimately, the Presidency was always envisaged as being a service rendered by one member country to the membership as a whole; perhaps the service rendered carries some kind of aura, but that aura is not its essence, and it is definitely not the rationale behind it. There is no question that the service rendered has changed because two of its key aspects — the Presidency of the
16/23 European Council and the Presidency of the Foreign Affairs Council — are aspects in respect of which the rotating Presidency no longer has any duties to perform. Therefore, the service rendered to the membership is less, if you will. Having said that, I would point out that the Presidency is still important because of all the other Council configurations, some of which, such as the Ecofin Council, I recall, are key to the development of the European Union, and also because there is a series of working groups which are answerable to them and are chaired by the rotating Presidency, prime among them Coreper, itself an important tool, a staging post, in the formulation of European legislation, European decisions. So it has retained its importance, although it has lost something of its, I wouldn’t say ‘lustre’, but something of the level of service required.
[Hervé Bribosia] Can Belgium learn from the previous Presidencies it has held?
[Philippe de Schoutheete] You always learn from experience, and Belgium has, indeed, held several Presidencies in the past, and has usually done a good job. Tradition has it, at least it did when I was directly involved in such matters, that small countries’ Presidencies are generally better than those of large countries. This is essentially because small countries have fewer direct interests to pursue, fewer focused interests to pursue and, in general — I’ve been involved in one way or another in three Presidencies, perhaps four, three at any rate — and it seems to me that, in general, we came through them well and rendered the service to the whole that I referred to a moment ago. I think that that is the first lesson to learn. In other words, it’s not about seeing it as an opportunity for ministers to appear on the television more than usual — that may well be what happens, but it’s not the key point: the key point is to work very hard to move things forward. In other words, to do everything you can to energise the Union’s executive and legislative process. That’s something that can be done only, and I think this is the major lesson, only if a Member State, the Member State that holds the Presidency, accepts that it will not doggedly pursue its own interests, but seeks out the common good, and that is what has happened under a series of Belgian Presidencies.
[Hervé Bribosia] The last point on the institutional innovations in the Treaty of Lisbon, the innovations whose origins lie in the treaty that emerged as a result of the European Convention, is the composition of the European Commission, the numerical composition of European Commission. The Constitution, like the Treaty of Lisbon, finally incorporated the idea of a leaner Commission where the number of Commissioners was equal to two thirds of the number of Member States. Do you remember the arguments put forward on this issue and, you referred to it just now, the changes in Belgium’s position on this matter over time?
[Philippe de Schoutheete] Yes, the essentials of the discussion were clear from the outset. The small Member States have always tended to argue in favour of one Commissioner per Member State on the ground that, otherwise, they might well not have a Commissioner. The large Member States have always been more relaxed on this point on the ground that there would, in any event, be at least one Commissioner from their country. As I said just now, the Benelux memorandum before Amsterdam had upheld this principle, somewhat against my better judgement, I must confess.
[Hervé Bribosia] Because there was one representative per Member State …
[Philippe de Schoutheete] … Somewhat against my better judgement because I have been convinced for a long time, particularly following conversations with Jacques Delors, that in order for the Commission to be strong, it has to be lean. Jacques Delors said one day that he
17/23 would not have liked to be President of a Commission of 20 Commissioners. I discussed the matter with him at the time and he convinced me of his point of view. I think that the real interest of small and medium-sized Member States lies in a strong Commission because, in many respects, the Commission is essentially the defender of the collective interest, and it is precisely the small Member States that have an interest in there being an institution to defend the collective interest. If being strong means having fewer Commissioners, and if that means that, from time to time, Belgium has no Commissioner, then I believe that that is a fair price and that we can pay it. I think, in the end, at one point I convinced Jean-Luc Dehaene of this position. And the Belgian Government was the most flexible small Member State on this point, within the framework of a general arrangement. Unless I am mistaken, the Belgian Government’s position at the time of the Convention was that, if the general agreement was satisfactory, then we were prepared to accept a leaner Commission. The issue has now become theoretical to some extent because, as you said, the negotiations with Ireland confirmed the principle of one Commissioner per Member State. I am convinced that this is a mistake for Europe and especially, paradoxically, that it is a mistake that will be damaging to the smaller Member States because it weakens the institution which defends them.
VII. A look back at the failure of the European Constitution and its consequences
[Hervé Bribosia] The Constitution that emerged from the Convention was rejected by the French and Dutch people. What was your view of this failure? And can we now say that the procedure followed in the wake of the referendums was the correct one?
[Philippe de Schoutheete] Oh, on the referendum first, the double failure was seen as, and clearly was, a major crisis, because two of the Union’s important countries, two of its founding members no less, rejected a treaty that their governments had signed, a treaty that was the product of lengthy deliberation at the Convention. The rejection underlines the phenomenon that had emerged at the first Danish referendum in 1992, namely that public opinion does not react as governments do on these matters or, to put it another way, that governments cannot convince public opinion of the merits of the treaties they sign. I have always wondered whether it was a good idea to submit complex legal texts like international treaties to referendum. And I’ve always come to the conclusion that the reply to that question was ‘no’. And I think that, in Belgium, we are right not to call referendums, not to have referendums, in any case not to subject treaties to referendums. Treaties are, by definition, complex arrangements which incorporate compromise and quid pro quos, and it’s extremely difficult to explain clearly to public opinion why a particular provision, an unpopular provision perhaps, is nonetheless necessary because we have to have another particular provision that would not be there otherwise. But we might as well be talking to a brick wall on this point, too, because some countries have undertaken to hold referendums on treaties — I don’t believe it’s a good idea, but it’s one that holds sway in at least some members of the Union at the moment. So, did we react well? Yes. I think we reacted well to extricate ourselves. I think a great deal of that is down to President Sarkozy. In my view, it was essentially down to him that we found a way out of the crisis. It was important that it was the President of the French Republic who sparked the manoeuvre, the strategy, the way out, because it was France that initially put the treaty in difficulty. I am of the view that the key points of the Constitutional Treaty have been retained. We’ve lost the symbols, and I regret that very much because it’s precisely because there are no symbols … it’s one of the reasons why we are unable to explain to public opinion what Europe is because there was, there never has been, a willingness to accept symbols. Public opinion is sensitive to symbols, and the
18/23 traditions of the nation states in this area are absolutely clear. I think that, in relation to substance, the essential provisions of the Lisbon Treaty [sic, the Constitutional Treaty] have been salvaged, and that’s good. I regret that we had to make the concession we made on the number of Commissioners. But a price always has to be paid in order to achieve agreement.
[Hervé Bribosia] But wasn’t it taking a risk to […], first to talk about a simplified treaty when its complicated nature, its complexity was something they were aware of? And wasn’t it taking a risk to resubmit for ratification a product that was almost identical to the Constitution?
[Philippe de Schoutheete] There is always an element of risk. There is always an element of risk, and we are always pursuing objectives that conflict with each other to a certain extent. The aim was for the treaty produced by the Convention to be a Constitution so that it would be perceived as simpler. And it was, that’s something that must be said for it, there was a deliberate element of simplification, including the aspect that initially came out of, I think, the 1999 Wise Men’s report, namely that the treaty contains two sorts of provision: constitutional provisions and legislative provisions. That distinction needed to be drawn. The word ‘constitutional’ made people afraid. The word ‘simplified’ made people afraid, and the truth is that the text we have today is obviously not simplified in any respect. Indeed, it is rather more complex than what we had before. There were risks, but there were even more risks in doing nothing. I don’t believe that politics can be without risk. I think we found a political way out of a profound crisis in the Union that resulted from two referendums. We mustn’t delude ourselves, though. Firstly, we have undoubtedly lost the will to renegotiate major treaties. But more importantly, nothing has been done to resolve the fundamental problem, namely the absence of a positive view of Europe in public opinion. That is definitely a problem that is still of concern.
[Hervé Bribosia] What would have happened if the Irish had said ‘no’ a second time?
[Philippe de Schoutheete] I really don’t know. I don’t think anyone does. I think everyone took the view that success was imperative, that there would be a successful outcome. I think there would have been enormous pressure on Ireland to leave the Union, for it to take an unambiguous position. The rest of the Union would unquestionably have been divided over the matter and we would have been on course for a major crisis, I believe.
[Hervé Bribosia] In hindsight, what is your view on the European Convention experience? Is future use of the method it employed compromised in the wake of the failure of the Constitution?
[Philippe de Schoutheete] The method is now set out in the treaty. It will have to be applied, as it’s the method set out in the treaty principally …
[Hervé Bribosia] Optionally?
[Philippe de Schoutheete] Yes, but with a stronger option. That is the standard method of amending the treaty. So I suppose we will see its use again. Probably not soon, because I don’t think there’s any desire to introduce profound amendments to the treaty in the short term. To my mind, it is far better than the method in place during the Maastricht and Amsterdam negotiations, because it formulates legislative texts in a way that is much more in keeping with the legislative process in our Member States, in other words there’s an assembly
19/23 — the Convention, comprising, in the main, people elected by popular vote — which formulates a text bit by bit. The text is, in the last analysis, submitted to an intergovernmental conference and, I should stress, to the Heads of Government. Nonetheless, the text formulated is already a more cohesive legislative text. The hope is that, as was the case with the 2003 Convention that resulted in the Constitution, it will be formulated in such a way that the Heads of Government will address only the few open political issues and will otherwise adopt the text as it stands. That is an enormous step forward compared to the negotiations in Amsterdam and Maastricht at least, that I was involved with, where the Heads of Government found themselves legislating on the hoof, if I can put it like that, during the closing stages on texts that appeared on the table, had not always been translated and whose consequences proved, in practice, to be on occasion strange and unforeseen. I think this is a more democratic method, a more convincing method for public opinion and a better method in terms of legal practice, a better method of making laws. I hope it will survive.
[Hervé Bribosia] And do you think that the Constitution has sounded the death knell for any constitutional approach, in other words a more globalising, more systematic approach, or can we instead argue that the pragmatic, functionalist approach, the ‘step-by-step’ approach, is definitively the one to be used?
[Philippe de Schoutheete] ‘Definitively’ …, I wouldn’t dare to speculate on what is ‘definitive’ in European matters. What can be said is that, if we look back in hindsight, as you have just done, the efforts to provide a constitution-style structure, whether for the European Defence Community, the Fouchet draft treaty, the Spinelli draft treaty — you mentioned the contribution made by Fernand Herman, who was a close friend of mine — those attempts have always, well I wouldn’t say failed, that would be an exaggeration, but they haven’t been key to the final outcome. Some of them clearly did fail, for example the Defence Community and, to a certain extent, the Fouchet Plan. Others were put on file, such as the work by Spinelli and Herman. The Constitution was another attempt at codification, and it is my view that we will never persuade public opinion about why we are building Europe without a Constitution that is relatively easy to understand at the grass-roots level. On that point, Mr Giscard d’Estaing said some things that were perhaps over-simplistic, but he was correct on the substantive issue. In other words, an average man, an average citizen had to be able to understand the treaty, and that is unquestionably not the case today. It’s a matter of great regret, a matter of great regret from the point of view of the relationship with public opinion. But perhaps it’s inevitable bearing in mind the diversity in Europe today. It all comes down to the end pursued: as we do not agree on what we wish to do, it is very difficult to define it in clear legal terms.
[Hervé Bribosia] Are there not even grounds for thinking that the forceps delivery of the Treaty of Lisbon means that it will be the last such treaty for a very long time? Perhaps for 50 years, as Valéry Giscard d’Estaing said at one point on the Constitutional Treaty. Do you think that we have reached the zenith of compromise between the advocates of a supranationalist or even federalist approach, and the advocates of an intergovernmental framework for the process of European integration?
[Philippe de Schoutheete] On the first question (I think it’s plain as a pikestaff): the experience of the 10 years between Laeken and the ratification of Lisbon means that enthusiasm to embark on major constitutional negotiations, major negotiations to amend the treaty, is extremely low. I don’t rule out minor amendments. There will always be some that are necessary, even if only to accommodate enlargements. I don’t rule them out for issues
20/23 such as energy where Jacques Delors has just tabled proposals to amend the treaties; they can be regarded as a special case. But major negotiations such as those undertaken for the treaties we have discussed — Maastricht, Amsterdam, Nice, the Constitutional Treaty — on those, I think it will be a very long time before the Member States are bold enough to enter into that kind of an exercise again, given the difficult experience we have had. I really don’t know about 50 years, but I do think that it will be a long time. So is this the zenith of a conflict, of this conflict of ideas, shall we say, that has always existed? It’s fairly difficult to identify where the zenith is, where the nadir is. I should, however, point out that there are opposing forces in this area. There is no doubt that enthusiasm and conviction and momentum for European integration have been attenuated, that they have been attenuated particularly by successive enlargements, they have been attenuated in part by the passing generations, from a generation that experienced the war to generations that did not. There is, therefore, definitely less momentum in the system than there was in previous periods that I have experienced. That takes things in one direction, but in the other direction, it is also true that the problems that the European countries will have to address — I’m thinking of climate, for example, I’m thinking, of course, of globalisation, issues of energy supply — are increasingly issues where joint action is necessary. That would tend to pull in the other direction. There are also issues where intergovernmentalism would not appear to be a good solution: intergovernmentalism has not, as we saw in Copenhagen, enabled climate, the issue of climate, to be resolved. In my view, there is a need for strong, united positions in a number of fields — the economic crisis is another — so the need for more Europe, and I am thinking more of the Community of Europe here, is pulling in one direction, and the growing reticence on the part of the Member States to transfer any powers to shared institutions, a reticence that has been in evidence at least since Amsterdam, is pulling in the other direction. The future will be determined by the balance struck between these aspects.
[Hervé Bribosia] Hasn’t the actual procedure for revising the treaties reached its limits? Do you think it is possible to envisage a move away from the principle of double unanimity which governs it, as recommended recently in a study by the Notre Europe association?
[Philippe de Schoutheete] This idea was included in the debate in the Wise Men’s report. Specifically, although it is difficult to conceive of key elements of the treaty — the constitutional section — being able to be amended by a means other than the traditional diplomatic channels of international conference and ratifications, it should be possible for other, less important provisions of the treaty to be amended using a different method involving simplified procedures, perhaps procedures internal to the Union. Perhaps by unanimity, but unanimity of the European Council, and entering into force on that basis. That idea appears to me to be extremely logical, indeed some traces of it are in the treaty, and it is doing the rounds again. It is to be hoped that it will be approved. We should not lose sight of the fact that there are a number of bridging clauses, a number of ‘simplified’ revision clauses in the treaty as it stands, having entered into force, and we will have to see whether they are applied or not. It is obvious, however, that the procedure to amend the treaty is currently extremely burdensome and involves major risk not only of failure but of profound crisis. You mentioned the Irish referendum a moment ago: if the second Irish referendum had been ‘no’, some countries would definitely have said, ‘Right, well, in that case, out you go!’ and there would definitely have been others, the United Kingdom in particular, that would have said ‘That’s out of the question!’ The crisis would not, therefore, have been an Irish crisis, the crisis would have been a split of the most serious kind in the European Union. That is what is raising fears, and it is that issue that we must hope will be resolved by making it easier to make certain amendments to the treaties.
21/23 VIII. The end and the means
[Hervé Bribosia] Ambassador, 30 [sic, 13] years ago, following the conclusion of the Treaty of Amsterdam, at the end of your diplomatic career, you published a book with a preface by Jacques Delors, a book bearing the title Une Europe pour tous [‘One Europe for All’]. It has been published in several languages and is for everyone, specifically the general public. You end with a chapter on the end and the means. You have already outlined a response to this question. Do you think we have moved forward since then, in the past 13 years, towards finding a clearer wording to describe the ends that provide the impetus for European integration?
[Philippe de Schoutheete] I actually wrote that book basically because it irked me, or at any rate surprised me, that, 40 years after the Treaty of Rome, a number of obvious things, things that appeared to me to be obvious, about European integration, did not figure at all in public opinion. And I tried to present these obvious things in a simple, comprehensible way, without too much of a critical eye. The final chapter deals with the end and the means, with purpose. This is obviously a key issue linked to public opinion. For various reasons, in any event since the Fouchet Plan in 1961, all debate about purpose has been avoided. What are we trying to do? What is the ultimate objective of European integration? The preamble to the Maastricht Treaty, the final version submitted to the Heads of Government, referred to the ‘federal vocation’ of the Union. That reference was removed at Great Britain’s request without much discussion, because the Heads of Government were so convinced that a debate on that kind of thing would be unproductive. Another thing that has always seemed very significant to me is that European treaties usually have a preamble, and the preamble is precisely the place where reference is made to the purpose, to the reason for making the treaty. Diplomatic tradition holds that preambles set out the aims: the treaty provides for implementation, the preamble sets out the aims. The Treaty of Amsterdam is the first European treaty that has no preamble. And it has no preamble because people told themselves that it wasn’t worth sweating over it and repeating previous preambles and that no agreement would even be reached on the aims. That’s a serious thing, both because it is always a serious undertaking to become involved in exercises when there is a lack of clarity as to where they might take you and because, more importantly, it is one of the causes, in my view a major cause, of the lack of understanding among public opinion. The British press tells British public opinion a load of old rubbish because it invents objectives that no one has, but that no one can contradict because there are no others, because there are no agreed forms of words setting out what we are trying to do. I believe that the absence of purpose is very serious, that it was already a very serious matter at the time when I was writing, and that no progress on it has been made at all since the time I wrote that book. I would say that it has taken a small step backwards as a result of the failure of the Constitutional Treaty, which tried, in some ways, to provide a direction, tried in any event to provide a simplification, tried to provide a number of symbols, and it was precisely the symbols and the direction that were set aside. I would therefore say that the vision regarding the purpose has diminished. Admittedly, for example, the economic crisis has led to a degree of national withdrawal, and the political will for European integration has been strongly undermined. The need for European integration has not diminished, but the will of the Member States to achieve it appears to be less effective, less obvious today. Perhaps it’s a temporary thing; it is to be hoped that it is. But in any event, there has alas been absolutely no progress at all on the issue of purpose.
22/23 [Hervé Bribosia] Ambassador, thank you very much for agreeing to give us your account of events.
[Philippe de Schoutheete] It’s my pleasure.
23/23