EUROPEAN EPIN POLICY INSTITUTE NETWORK EPIN WORKING PAPER NO. 8 JULY 2003 A DYNAMIC AND DEMOCRATIC EU OR MUDDLING THROUGH AGAIN? ASSESSING THE EU’S DRAFT CONSTITUTION KIRSTY HUGHES This series of Working Papers is published by the European Policy Institutes Network (EPIN). Unless otherwise indicated, the views expressed are attributable only to the author in a personal capacity and not to any institution with which she is associated. ISBN 92-9079-450-X Available for free downloading from the CEPS website (http://www.ceps.be) Copyright 2003, Kirsty Hughes CEPS gratefully acknowledges financial support received for EPIN from the Prince Programme of the European Commission. Place du Congrès 1 ▪ B-1000 Brussels ▪ Tel: (32.2) 229.39.11 ▪ Fax: (32.2) 219.41.51 ▪ VAT: BE 424.123.986 e-mail: [email protected] • website: at www.epin.orghttp://www.ceps.be A DYNAMIC AND DEMOCRATIC EU OR MUDDLING THROUGH AGAIN? ASSESSING THE EU’S DRAFT CONSTITUTION EPIN WORKING PAPER NO. 8/JULY 2003 * KIRSTY HUGHES Introduction The draft Constitution is on the table. Attention is moving towards the traditional intergovernmental game that will be played out at the intergovernmental conference (IGC) during autumn 2003 – and quite possibly into early 2004 (despite the intentions of the Italian presidency). Much of the structure and the detailed substance of the draft treaty will stay but the IGC will be far from a rubber-stamp exercise. Moreover, despite the pessimists’ (or perhaps realists’) view that the IGC will only make the draft Constitution worse, the governments do have an opportunity to improve and clarify many areas. Certainly a number of issues will still be hotly contested not least on the core institutional questions. In many ways, the results of the Future of Europe Convention represent an important step forward. The operation of the Convention itself, through its relative openness, was a significant development. The existence of a single Constitutional Treaty is an important move in the right direction. The Convention also achieved considerable simplification in some areas, and some very important democratic steps were taken. But the Convention has also thrown up a number of problems. Despite its openness, the core institutional debate was conducted largely behind closed doors and in considerable haste. It is far from clear that the procedures followed for the Convention’s institutional work were even as good as, let alone better than, an IGC. In this respect the procedures deviated strongly from that followed for all other areas of the Convention’s work. In some ways, the draft Constitutional Treaty introduces more complexity than more simplicity – particularly in the dual presidencies of Commission and European Council. Crucially, there are some big gaps on the democratic front, notably on the accountability of the executive. The result of the Convention was a compromise and consequently it is not easy or necessarily advisable to try to identify winners and losers. Nevertheless, it is clear by looking at the three main institutions that the European Parliament has been strengthened in important ways. But the picture is much less clear for the Commission and Council, where turf-fighting and confusion looks likely to be one of the legacies of the changes proposed, with neither institution ending up substantially strengthened. Many of the divides in the Convention were between larger and smaller countries as much as the inevitable conflict between intergovernmental and integrationist points of view. All sides can claim some successes. But the compromises that were necessary to balance these points of view have produced an outcome that, on the one hand, could function fairly well and represent a step forward but that could, on the other hand, equally result in institutional malfunctioning. Which of these two outcomes occurs will depend not only on the political personalities involved but also on relations between the institutions (and whether member * Kirsty Hughes is Senior Fellow at the Centre for European Policy Studies in Brussels and Coordinator of EPIN (European Policy Institutes Network). 1 KIRSTY HUGHES states get involved in any of the ongoing battles that may develop between personalities or institutions). Overall, the draft treaty is at least a substantial step forward from the inadequacies of the Nice Treaty. Its structure will act as the basic framework for the EU’s politics and policies for many years to come – though revisions will certainly occur. But some of its central and messy compromises leave much uncertainty as to the future functioning of the enlarged EU. 1. The Convention process – pluses and minuses Overall, the Convention proved itself superior as a method for preparing treaty change compared with a stand-alone IGC. The openness of the proceedings and the inclusion of representatives of national parliaments, the European Parliament and the Commission all underpinned the deliberative approach that allowed a much more thorough and in-depth analysis of the issues. The very example of the Convention highlights the secrecy of IGC negotiations, adding to the pressure for much more openness about the forthcoming IGC. The openness of the Convention did not translate into a wide public debate – partly because no priority of either time or funding was given to such a debate. Nonetheless, it did allow a much wider and informed discussion than previous IGCs. There was also greater access to the Convention among journalists, NGOs, unions, business, regional bodies, think-tanks, academics and others. National parliaments were in a position to engage deeply in the debates given not only the Convention’s openness but also the presence of national MPs – though it does not seem in general that parliaments strongly exploited this opportunity. The simple principle of open access for any member of the public to the Convention debates is an important democratic principle in its own right. For many of the major areas, such as simplification of legislation, foreign policy and freedom, security and justice, the Convention proceeded in clear stages allowing substantial time for analysis of the issues. First of all, there was an open plenary debate on the basis of detailed and well-prepared secretariat documents, followed by in-depth examination in a series of working group meetings, with another plenary session then examining the working group report. Only after this sequence of debates were draft treaty articles put forward. This rather thorough process had a number of important weaknesses, however, and broke down entirely in the case of institutions. Despite working for over 16 months, the Convention only considered draft treaty articles in its final four months. Regardless of long debates over the treaty articles and thousands of written amendments, the first revised version of most of the articles (but even then not all) was only produced at the end of May. This timing left only two weeks to debate the revised version and to simultaneously deal with the heart of the institutional debate. After the presentation of the draft treaty to the Thessaloniki summit on 20 June, the Convention had two final sessions in July dealing with parts three and four of the treaty, which allowed for very limited debate and changes. The consequence of this truncation and imbalance in the Convention’s debates, with its serious limiting of the debates on key issues (institutional reform, the revised treaty articles, and parts three and four of the treaty), meant considerable power rested in the hands of the praesidium. The praesidium met in private and did not publish its minutes. Its own internal politics was not straightforward and the praesidium was not a cohesive collegiate group. It was dominated by Valery Giscard d’Estaing, as Chairman, John Kerr as Head of Secretariat, and to a lesser extent, by the two Vice-Chairmen, Jean-Luc Dehaene and Giuliano Amato. The Convention certainly needed a steering group. But the excessive and secretive power of the praesidium, which in itself was not anyway representative, and particularly of Giscard 2 A DYNAMIC AND DEMOCRATIC EU OR MUDDLING THROUGH AGAIN? himself as the Chairman, is one central aspect of the Convention method that should be substantially revised before it is used for future treaty change. 2. The Convention approach to institutional issues In the core institutional debates, the Convention method as described above was put to one side – with remarkably little comment, protest or debate from Convention members. The institutional issues were seen, rightly, as the most divisive and were deliberately left until the end of the process by Giscard. No working groups were established on institutions or on democracy, on the grounds that all members of the Convention would want to participate in those debates and discussions. But in the event, the absence of working groups did not lead to longer detailed deliberation in the Convention plenary but just to an absence of that deliberation. Meanwhile, a considerable institutional debate was taking place outside the Convention, triggered in early 2002 by the UK and France, with their proposal for a permanent president of the European Council. This parallel external debate, particularly among the member states, only converged with the Convention when it discussed institutional issues for the first time in January 2003.1 The sharp, political debate revealed a striking split within the Convention between the larger countries on one side and the smaller countries, MEPs and Commission on the other. There was a striking contrast also between the excellent and lengthy documents the secretariat had produced for all other plenary debates and the very short, weak paper put forward for the January debate. Consequently, the Convention debate focused instead on the Franco-German paper on institutions produced two days earlier,2 with the smaller countries criticising it sharply. What happened after this debate is the most significant of all.