A Dynamic and Democratic EU or Muddling through Again? Assessing the EU’s Draft Constitution

As the EU moves into its new era, the draft Constitutional Treaty will settle most of the institutional issues for now and the focus will shift onto the strategic, tactical politics and the substantive policy-making in an EU of 25.

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. 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 those 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 two presidencies of the Commission and European Council. More importantly 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 the 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 proposed changes, with neither institution ending up substantially strengthened.

Many of the divides in the Convention were between larger and smaller countries, along with the inevitable conflict between intergovernmental and integrationist points of view. All sides can claim some successes. Yet 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 states choose to get involved in any of the ongoing battles that may develop between personalities or between institutions).

Overall, the draft treaty is 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 for 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, which 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 neither time nor funding was set aside for it. Nonetheless, it did allow 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 strongly with the debates because of the Convention’s openness and the presence of national MPs – although it does not generally seem that parliaments 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 by a series of working group meetings and another plenary session to examine the working group report. Only after this sequence of debates were draft treaty articles put forward.

Nevertheless this thorough process had a number of weaknesses and broke down entirely on the issue 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 serious truncation and imbalance in the Convention’s debates, with its dire limiting of discussion 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 were not straightforward and the praesidium was not a cohesive collegiate group. It was dominated by Chairman Valery Giscard d’Estaing, the Head of Secretariat John Kerr, 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, and particularly of Giscard himself as the Chairman (which in itself was not anyway representative), is one central aspect of the Convention method that should be substantially revised before it is used for future treaty change.

2. The Convention’s 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 ones 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. Yet in the event, the absence of working groups di d 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. The sharp, political debate revealed a striking split within the Convention between the larger countries on one side and the smaller countries, MEPs and the Commission on the other.

There was also a striking contrast 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, which received sharp criticism from the smaller countries.

What happened after this debate is the most significant of all. The Convention did not move on to further, more detailed institutional discussions. Papers were not put forward by the praesidium setting out issues, questions and options for solutions (it appears that more detailed institutional papers were produced by the secretariat but not discussed even by the praesidium). Instead, in February 2003, the Convention moved on to discuss social and regional issues and the first draft treaty articles. At the end of February, Giscard announced that the draft institutional articles would be put to the Convention at the end of April – which is what indeed happened (after a stormy two-day praesidium meeting, halfway through which Giscard’s personal proposals for institutions were leaked to Le Monde). By this stage it was very clear that the Convention’s institutional debate was being curtailed and pre-empted.

Some hoped that the overall timetable of the Convention could be extended – and Giscard seemed to be among those aiming to do this – a request that the member states rejected. Although it was obvious that little time was being made available for the institutional debate, there was a striking absence of specific demands for more in-depth secretariat papers on the institutions or for more plenary sessions on the institutions before the draft treaty articles were produced.

A full discussion of the draft articles on the institutions only took place at the mid-May meeting of the Convention. The majority of the Convention members, notably still the smaller countries and the MEPs, were extremely unhappy with the draft. But again, the Convention moved away from the institutional debate and its end-of-May session received the first revision of the treaty articles (with the exception of the institutional articles). This session also focused, somewhat curiously at this late stage, on issues such as enhanced cooperation and economic governance. Proposals for revising the institutional articles were finally given in oral presentations on Friday, 6 June by Giscard and the two vice-presidents to the Convention, which was split into its four constituent groups – governments, national MPs, MEPs and the Commission. Some but not all of these meetings were open. The actual draft text was not available until 10 June, just three days before the formal concluding session on Friday, 13 June. The tension between large and small countries was also overlaid in these last weeks by a different split between those who wanted to maintain the key provisions of the Nice Treaty (led by Spain) and those who were ready to move beyond it.

So the crucial stages of the institutional debate were not only squeezed into a very short period of time (with an absence of either background papers or revised draft texts) but much of the bargaining took place behind closed doo rs and in corridors. Giscard himself has called for the IGC to not make significant changes to the draft and in particular to leave the institutional compromise as it is. But the way the institutional compromise was reached means Giscard’s call has much less weight than it should have. Indeed, the fact that the Convention failed to follow an in-depth deliberative approach to institutions before bargaining places a large question mark against the value of the Convention method. This approach is also responsible for the fact that the institutional compromise is not obviously better than one that would have been achieved through an IGC. It is also responsible for the unfinished nature of some of the institutional proposals, not least with respect to the Council of Ministers.

3. The institutional compromise

The institutional compromise that the Convention came to is built on a trade-off between the demands of larger and smaller countries, and views of the integrationists versus intergovernmentalists. These two sets of groups are not identical – smaller countries are not necessarily the more integrationist. While smaller countries may generally tend towards, for example, supporting a stronger Commission, most of these put greatest emphasis on retaining their right to have an individual Commissioner, something liable to weaken the Commission.

Furthermore, in an EU of 25 or more, with 19 small countries and only six large ones, the small members in many cases are more concerned to defend national sovereignty (for instance, their veto rights) while the large countries, even the UK, do not want to see the initiatives they support easily blocked by one small nation. Hence, the UK supported QMV for asylum and immigration issues, but was blocked at the last moment by a German insistence on retaining its veto. Further complications came into the institutional debate, as Spain and Poland in particular realised they would lose some voting power in the move to double majority voting based on country and population – an issue that Spain is bound to raise again at the IGC.  

The institutional debate and battle focused to an excessive degree on the so-called ‘ABC proposal’ (supported by Prime Minister Jose Maria Aznar, Prime Minister Tony Blair and President Jacques Chirac). The proposal called for a permanent president of the European Council (a proposal initially floated behind the scenes by the British, but first publicly launched by Jacques Chirac in March 2002). In the end, this proposal distracted attention from other important issues of reform around the Council of Ministers and also focused attention onto the balance of power between the Commission and Council. The winner out of this debate was in fact the European Parliament. It has emerged with much stronger powers of co-decision, established as the normal legislative procedure, together with more budgetary control. It also has more powers in other areas such as trade, justice and home affairs, and a (debatably) stronger role in electing the Commission president, together with the Convention method now enshrined in the draft treaty. The Convention studiously ignored issues such as the location of the Parliament. Nevertheless, the proposed reforms and compromises concerning the Commission and Council (both the European Council and the Council of Ministers) have the most potential to become problematic in the future functioning of the EU.

4. Running the EU

The enlarged EU will have three main public figureheads, according to the draft treaty: the European Council president, the European Commission president and the new EU foreign minister. There is potential here for rivalry between these three posts, most notably between the two presidents, but also between the European Council president and the EU foreign minister, and between the Commission and Council as institutions. Furthermore, since the Europea n Council president is seen (rightly) as a core institutional demand of the big nations, then it is possible that the big and small nations may intervene, if they can, in any ongoing turf-fighting between the two presidents, particularly as the new president of the European Council attempts to define and establish his or her role. Such intervention may be the case even if, as now expected, the first European Council president comes from a smaller country.

The new European Council president is expected to prepare, chair and drive forward the work of the European Council. But the president is to prepare the Council’s work and ensure its continuity “in cooperation with the president of the Commission and on the basis of the work of the General Affairs Council”. At the same time, under the description of the role of the Council of Ministers, it is the General Affairs Council that shall “in liaison with the Commission, prepare and ensure follow-up to, meetings of the European Council.”

Meanwhile, it is the Commission that will draft the EU’s annual and multiannual programming. Furthermore, the Legislative and General Affairs Council will be chaired on a rotating basis and not by the new European Council president, as the UK had hoped. The draft treaty does not rule out (as early draft did) the future possibility of combining the two president posts, whether in a double-hatted way or as a single executive president, as suggested by British MEP Andrew Duff and Former Italian Prime Minister Lamberto Dini in the Convention, among others.

Some of this allocation of responsibilities is welcome (which was pushed for by the Benelux countries, among others, to limit and tie down the new Council president) and may ensure a strong role yet for the Commission. Nevertheless it leaves the door open for substantial confusion and turf-fighting over who does exactly what and over the hierarchy between the roles. Will the European Council president, for instance, be able to add to or amend the Commission’s draft strategic programme? Will he or she play the lead role in coordination and follow-up? The relative powers and roles of the two presidents in the end will depend to an important degree on what happens in practice, not least on the political personality and abilities of the first Council president relative to that of the Commission president.

There is also an open question, with the end of the single rotating presidency system, as to how the rotating chairs of the Council of Ministers will coordinate their work with each other and with the president of the European Council. Here again some countries, notably the UK, would like to see the new Council president chairing some form of coordinating committee.

The draft treaty says that the Legislative and General Affairs Council will ensure consistency in the Council of Ministers’ work, but this still leaves open the role that the new president may play. Many of these issues around the powers of the new president are likely to be debated again during the IGC. What is clear is that the move from a part-time role played by an acting prime minister to a full-time role is a strategic shift, whose full impact will only become clear over time.

There is also scope for confusion, both inside and outside the EU, over external representation. Although the European Council president will represent the EU concerning common foreign and security policy (CFSP) “without prejudice to the responsibilities of the Union Minister for Foreign Affairs”, the Commission, with the exception of CFSP, “shall ensure the Union’s external representation”. Meanwhile the new EU foreign minister “shall conduct the Union’s common foreign and security policy” and as vice-president of the Commission will also be responsible for “handling external relations and for coordinating other aspects of the Union’s exte rnal action”. Both the draft Constitution and the EU’s new draft security strategy presented to Thessaloniki by the High Representative for CFSP, Javier Solana, emphasise the importance of coordination across different aspects of external action.

Whether this new division of labour will be conducive to such coordination is at best an open question. As so much effort was expended on all sides to define the post of the new European president, reform of the Council of Ministers received less attention. There was much argument about who should chair the different Council formations, which was also being driven by attempts to expand or limit the new president’s powers. With the exception of the Foreign Affairs Council, which will be chaired by the EU foreign minister, the other chairs will rotate on an equal basis, but with a rotation length of at least one year. How this rotation procedure will work (whether for example, it will be on the basis of team presidencies of a fixed number of countries and whether a period longer than a year will be seen as preferable) is left open. All of these questions are to be left to the European Council. A longer team presidency, of say four countries over two and a half years, will further emphasise the question of coordination.

Will the chair of the General Affairs Council coordinate the team or will the European Council president attempt to do so? Will this team end up as a rival to the Commission?

5. A more effective Commission?

The question of the Commission’s size received much greater attention in the Convention and in the institutional debates than the question of its accountability, or the election of the Commission president.

The proposal of a two-tier Commission is an unhappy compromise between two main positions. On the one hand are those who wanted a small Commission, seeing this as potentially more effective and providing stronger collective leadership (and thus control over the administration). On the other hand are those who wanted to retain a large Commission with every member state having a commissioner. Though this proposal does have the virtue of creating a small college of 15 commissioners, who will run the Commission and each have a single vote in the college, it leaves the role of the outer tier of non-voting commissioners unclear. Given the limited political powers and responsibilities, there is a serious risk that the outer tier of commissioners may be substantially more likely to focus on lobbying and promoting national issues than under the current system. This likelihood appears even stronger in light of the determination by most of the smaller countries, not least the new member states, to retain a ‘national’ commissioner. Ironically, if the behaviour of some of the small countries continues to push towards making the Commission more intergovernmental, it is the large countries that will resist this (given the lack of any weighting by size).

The principle of equal rotation between the two tiers is also potentially problematic. Over time it may mean that there are two more- or less-fixed groups of countries rotating between the tiers, so the same countries are always working together. It is also unclear how the Commission president and the foreign affairs minister will relate to this principle of equal rotation, given their different roles and appointment methods. If equal rotation is only applied to the 13 other commissioners in the college, then once the Union reaches 27 members (which if it happens in 2007, it will be two years before these reforms come into practice in 2009), there will be at least one country that will have to wait more than ten years for its turn.

A number of countries, both small and large, seemed to have second thoughts about this compromise proposal and its acceptability to their publics. It is likely to be discussed again at the next IGC.

The election of the Commission president was seen by some, not least Germany, as a quid pro quo strengthening of the Commission in the face of the new European Council president.

Indeed the Franco-German compromise on institutions revolved around France persuading Germany to accept the new Council president and Germany, in turn, persuading France to accept the election of a Commission president. But the election process is very weak and not a large step forward from the current position, given that it allows the European Council to have the key role of nominating one single candidate upon which the European Parliament can vote. German Foreign Minister Joschka Fischer did not make any attempts to lead demands in the Convention to strengthen this election process. His position perhaps reflected, at least in part, the differences between his and Chancellor Schroeder’s views on European policy (a difference that seems to underpin Germany’s relatively weak and low profile in the Convention).

Nevertheless some argue, not least in the European Parliament, that it will be possible to use the European elections to put forward different presidential candidates, making the procedure much stronger and more politicised than it appears at first glance. Whether the European Council will, however, simply fall into line and nominate the candidate of the party with the largest number of votes remains to be seen and may not necessarily occur. Some potentially difficult conflicts between the Parliament and the European Council may be opened up here.

As it stands, the draft treaty represents a weak and inadequate step in the accountability of the executive powers of the Commission. It is also an inadequate step in the political strengthening of the president and commissioners relative to the officials in the bureaucracy.

6. Democracy and efficiency

The strengthening of the European Parliament is welcome in terms of both democracy and efficiency. Nevertheless the institutional changes to the Council and Commission discussed above are disappointing in democratic terms as executive accountability and legitimacy have not been adequately strengthened. The so-called ‘election of the Commission president’ barely deserves the description ‘election’. Meanwhile the new European Council president is to be appointed (on a qualified majority decision) behind closed doors by the European Council. The president will similarly be accountable to the Council in private and have a very weak reporting obligation to the European Parliament. In the battle over the distribution of power between the two institutions, democracy and simplicity got left behind. In view of the powers of the Commission, not least its right of initiative, this is a grave omission. The legitimacy of the new European Council president will be very weak. Given that the post is likely to be filled by a former prime minister, appointed behind closed doors, it seems unlikely this new post will have adequate credibility with his or her peers, let alone with foreign leaders such as President George Bush and Prime Minister Vladimir Putin.

But some important democratic steps have been taken. The foremost of these is the greater transparency of the Council’s legislative process. The proposal for a Legislative and General Affairs Council will ensure a vital, democratic and long-overdue opening up of EU legislation, though some find it disappointing that it continues to combine legislative and executive functions. This reform has the potential to have a very powerful impact on media reporting and on domestic understanding of European politics and European power – television footage of ministers voting in Council will make it clear where EU legislation comes from. Yet many member states and individual ministers are not happy with this proposal and its removal of legislation from the sectoral councils. If legislation stay s within the individual sectoral councils after the IGC, then it will be crucial to ensure that the legislative side of their work is fully revealed and that it is not a token effort as suggested at the Seville Council (which proposed opening up at the start and end of the process). Even if the Legislative and General Affairs Council is accepted, this is not a complete move to a second chamber system. The power of unelected officials in Council working groups will remain.  

Nonetheless it is a significant move in the right direction. The new ‘yellow card’ system to give national parliaments a clear role in monitoring subsidiarity is another important, democratic step. The crucial outcome here may be that the reform makes it clear to domestic media and national publics that their national parliament has full information and a potential role to play at the start of the process. If the yellow card system works, it will also encourage communication and cooperation across national parliaments.

There are other important initiatives too. The inclusion of the charter of fundamental rights in the treaty and the establishment of a single legal personality allowing accession to the European Convention on Human Rights, are positive and important advances. The idea of citizens’ initiatives, introduced into the draft treaty at a very late stage, is interesting and imaginative, though whether it survives the IGC has yet to be seen. The community-wide approach to the area of freedom, security and justice may also affect efficiency and democracy. Nevertheless the focus of the discussion in the Convention was much more on increasing effectiveness in this area, as well as concerns about progress and inadequate balancing on civil liberties and democratic controls.

Much of the work on simplification impacts both efficiency and democracy. Simplification of the legislative procedure, decision-making instruments and competences are all positive. The breakdown of competences remains somewhat complex, with seven different categories in the constitutional section, even though only three broad types of competences are named – exclusive, shared and supporting. The move to double majority voting and away from the complex system of individually weighted votes is an important move forward from the Nice treaty for efficiency and democracy. But it will be hotly contested again at the next IGC.

The extension of areas covered by qualified majority voting and not unanimity is a major advance in terms of efficiency, though it remains to be seen how much survives the IGC. France already ensured retention of the veto over trade and cultural industries in the closing stages of the Convention, as did Germany over asylum and immigration. Meanwhile the extremely small scope to introduce qualified majority voting in tax issues looks set to be vetoed by the UK and Ireland, among others. The so-called ‘passerelle’ clause that would allow the European Council to move to QMV at unanimity without treaty change is potentially powerful in allowing greater ease of change, though unanimity in an EU of 25 will be hard to achieve. This clause will also be contested at the IGC, not least by the UK.

The existence of one single treaty and of a first constitutional section is a major step in the right direction for both democracy and efficiency. The draft treaty can hardly be claimed to be easily accessible to the person in the street, but it is still more coherent, more consistent and more accessible than before. Nevertheless the failure to take more time over drafting the first constitutional section in an accessible and understandable style as a priority reflects the continuing elitist nature of EU construction. While taking into account legal and political needs, the Convention could have shown a more serious commitment to bring the EU closer to its people if a substantial effort had been made to road test the language and presentation of the constitutional section. Nor does Giscard’s preamble greatly help matters here – being overlong and hardly modern. Overall, much more powerful and thoughtful proposals on democracy could have been produced if a working group on democracy had been established.

The ratification of the draft treaty, after the IGC, also raises vital political questions about the democratic acceptance by European citizens and not just the states of the new Constitution. A number of countries have already indicated that they will hold referenda on the draft treaty, including France and Spain. Some, notably Ireland and Denmark, are constitutionally required to do so. The UK in particular has been put under pressure by both pro-Europeans and eurosceptics to hold a referendum. So far the government has resisted this pressure, arguing that the changes are not of sufficient constitutional importance. This position may be more reflective of the UK government’s fear of its ability to win a referendum, than a genuine view that the draft Constitutional Treaty really represents a mere “tidying up” in the defensive words of the UK government representative to the Convention, Peter Hain.

The new treaty has to be ratified at unanimity and so any rejection among the 25 member states will certainly cause a political crisis. Suggestions by some that it should be made clear to EU publics that if they vote ‘no’ then they should leave the EU are the opposite of democratic. It would, after all, be entirely democratic – and pro-European – to reject the draft Constitution on the grounds that the democratic steps taken forward are inadequate. To suggest a simple ‘take-it-or-leave-it’ option gives no respect to European democracy. The eventual political realities of ratification and any negotiation around a rejection will depend both on the number and the identity of the countries that say ‘no’. But to suggest continuing membership of the future EU requires a ‘yes’ vote, before any country has voted, is arrogant elitism of the type that the new Constitutional treaty is meant to help the EU shed.

7. Foreign and security policy

Giving the EU a real voice in the world and strengthening its capacity as a global actor was one of the three main challenges posed by the Laeken declaration to the Convention. As events unfolded, the Convention’s work on foreign policy and defence policy was strongly overshadowed by the Iraq crisis and the deep divisions provoked across the governments of the EU, among current and future members. This division drove home the point that institutional structures (and changes in those structures) cannot create a common foreign and security policy in the absence of a genuine political commitment and political will to build such a common policy.

Not only did Iraq demonstrate all too clearly the absence of that will to build a common policy, but it showed the unwillingness, particularly of the larger member states, to discuss and manage their differences or to minimise the damage from following different points of view. Indeed, in the years running up to the Iraq crisis, the EU’s foreign minis ters had precisely not discussed Iraq due to the ongoing differences of view between France and the UK. Beyond failing to manage their differences, the member states maximised the negative fallout from these – with some help from the US (Secretary of Defence Donald Rumsfeld in particular). President Jacques Chirac has been rightly criticised for his insulting comments to the candidate countries over the positions they took. Equally damaging and inappropriate, though receiving less ongoing comment were the unprecedented, blunt attacks made not only by the British tabloids, but by Tony Blair and UK Foreign Minister Jack Straw directly against Jacques Chirac and Foreign Minister Dominique de Villepin. Indeed it was the UK and Spain that led the moves towards the divisive ‘diplomacy’ of advertising European differences in the pages of the Wall Street Journal.

It was notable during the Iraq crisis that Javier Solana had little option but to keep his head down; he had no role. The Greek presidency did their best, appropriately calling for an emergency summit, but to little avail. It must be open to considerable doubt whether a more permanent president of the European Council and an EU foreign minister instead of a high representative would have been in any stronger position to prevent or even limit the damage from the EU splits over Iraq. On the contrary, such splits would call into political question the value of both roles. Some suggest that the Iraq crisis may lead to a leap forward in the EU common foreign policy, citing the shift from the disastrous failures of EU policy in the Balkans in the early 1990s to the current EU peacekeeping in Macedonia. Despite the present EU role in the western Balkans, it is not clear that the EU has the strategic ability nor common will that would allow it to act more effectively in the future, in the face of such challenges as the break-up of the former Yugoslavia.

The Thessaloniki summit considered a draft security strategy from Javier Solana, which is an important advance. The strategy identifies priorities in promoting multilateralism, establishing an effective wider-Europe strategy and tackling current threats from WMD, terrorism and failed states. Among its near neighbours in wider Europe, the EU faces an authoritarian state in Belarus and a failing state in Moldova. Yet it is uncertain that the EU has the strategy or common political will to deal with these challenges let alone the larger global ones. In terms of the transatlantic relationship, key differences still remain, in particular between France and the UK – with France calling for a multipolar world and the UK labelling this as a dangerous strategy.

In light of these challenges, the Convention’s proposals inevitably appear somewhat limited. The main change in the draft Constitution on CFSP is the double-hatting of the new EU foreign minister, responsible to the Council for CFSP. At the same time, this individual will have the role of vice-president of the Commission and coordinate external action policies. The foreign minister will need to take forward and develop the EU’s security strategy. Even if the partnership with the new European Council president is strong as opposed to competitive, this new post cannot take away the reluctance of the member states, especially the larger ones, to cede national sovereignty on foreign policy issues and thus create a genuine, substantive foreign policy for the foreign minister and president to implement.

The draft Constitution allows for member states to request that the foreign minister present the EU’s position (when there is one) to the UN Security Council. The frequency with which this happens may be low. The draft Constitution also puts forward a list of eight broad goals that define the aims of the Union’s external action across all policy areas. There is little real progress, however, in improving coordination across the different areas of external action. < p align=”justify”>There are also major differences of view within the EU about the new foreign minister post. It was France that managed to persuade the UK that the double-hatted post was acceptable as long as the foreign minister was principally answerable to the Council and not to the Commission. The UK is nonetheless concerned by the possibility of opening the door to Commission influence over CFSP. It is also likely to push for a different name for the new post, as ‘foreign minister’ sounds too governmental.

Nevertheless there are risks that go in the opposite direction. If foreign policy is decided in the Council and the foreign minister drives external action policy within the Commission, then Council decisions may impact strongly onto initiatives that should theoretically come from the Commission. This impact could extend to policies such as transport and environment, as well as to policies on trade, aid and development. The creation and the location of the new external action services was seen as a very sensitive area at the Convention, with many arguing that a new administrative institution must not be created.

The Convention debated qualified majority voting (QMV) in CFSP at considerable length and a large number of Convention members argued for its widespread use. France and Germany actually proposed using QMV in their joint institutional paper, although after the Iraq crisis, France was considered to have gone somewhat lukewarm on the idea. The UK in particular is strongly opposed to any QMV in CFSP, even to the minor extensions in implementation that have been suggested. Nevertheless, the possibility for enhanced cooperation in CFSP has been strengthened (as discussed below).

In some ways, progress is considered to have been made in security and defence policy, with an extension of the Petersberg tasks, the establishment of a European Armaments Agency and the introduction of the possibility of enhanced cooperation in defence. It is not certain, however, why the draft Constitution commits member states to progressively “improve their military capabilities”. This commitment is surely a specific policy decision that may apply at some point in time, but not indefinitely (let alone for the 50 years for which Giscard hopes the draft Constitution will last).

In an important move forward, some forms of enhanced cooperation are now to be allowed in security and defence policy. Crisis management tasks may be attributed to a group of countries, so-called ‘structured cooperation’ may be established concerning capabilities and the possibility for closer cooperation on mutual defence is also proposed. This is, however, a controversial area and will be discussed again at the IGC. The UK in particular is nervous about ‘structured cooperation’ in defence and any possible competition with NATO, and strongly opposes a mutual defence clause. Much less controversial is the very broad ‘solidarity clause’, placed under the freedom, security and justice heading that commits member states to mobilise all instruments to prevent or respond to terrorist threats within the EU.  

Nevertheless defence policy cannot, in the end, be separated from the need for a strong EU foreign policy to drive it. Despite the various proposals in the draft Constitution, the key question remains the (lack of) political will and commitment of the member states to build a genuine common foreign policy. In essence, the EU will move forward with a two-tier foreign policy: common policies and actions may develop over less controversial and lower-level issues, but member states will emphasise their national sovereignty and freedom of action in major strategic areas and issues.

8. Conclusion

The draft Constitutional treaty represents a large move forward relative to the Nice Treaty. But the more pertinent question is whether it has met the main Laeken challenges of increasing democracy and bringing the EU closer to its people, improving efficiency to ensure the effective operation of the enlarged EU and strengthening the EU’s role in the world. The draft treaty is a compromise. Consequently it has made some steps to meeting these goals, but much more remains to be done. Some steps forward on democracy in the draft treaty are matched by important gaps, particularly in the accountability of the executive. Many advances on simplification and efficiency have been made but whether they will cope adequately with the challenges of enlargement is more doubtful. Regarding the EU’s role in the world, divisions among the member states and candidates over the Iraq crisis demonstrated the feasibility of a real, common foreign policy (which inevitably limited the Convention’s ambitions).

Regarding some of the main institutional compromises, some progress has been made. The first, but very limited, actions to electing the Commission president have been taken along with some action towards creating a genuine, small college of commissioners. But the election process needs substantial strengthening and the two-tier Commission, as outlined, may lead to it becoming a more intergovernmental organisation. The creation of a permanent president of the European Council could be problematic, although the post has been substantially ring-fenced. Nonetheless, the institutional compromise does look, at least in part, like a recipe for ongoing turf-fighting and confusion. The IGC may not result in much improvement.

In many ways, the Convention has been working in the dark. How an EU of 25 or 27 or more members will work will only be seen in practice. The new treaty will not come into force until 2006 or 2007, with some of its provisions not operating until 2009 or later. And yet by 2010 or 2012, Croatia and Turkey could be members of the EU. By 2016 or 2017, within ten years of the introduction of the new treaty, many other countries from the western Balkans may have joined. Other eastern neighbours, including Ukraine and Moldova are looking for eventual membership as well. An EU that is heading towards 35 members or more is conceivable.

Already, with its jump from 15 to 25 members in 2004, the EU is entering a new era. The ten new members will not simply absorb the old culture and practices of the Union. The EU will develop politically in new ways. Many big questions remain to be answered: Will the enlarged EU forge sufficient consensus and commitment across its diverse membership to be effective, dynamic and close to its many citizens? Will an EU of 27 or more find genuine strategic direction and strategic leadership? The draft Constitution cannot and does not provide the answer to such questions of strategic leadership in the enlarged EU, though some of its tools will contribute to finding the way ahead. The EU may develop in part through building a series of multiple cores, wherein different groups of countries cooperate more intensively in different policy areas. Whether such flexibility will enhance the operation of the future EU or lead to growing frictions is another open question.

Many of these central and future issues concern political interests, dynamics, interaction and dialogue upon which the draft Constitution cannot prescribe. As the EU moves into its new era, the draft Constitutional Treaty will settle most of the institutional issues for now and the focus will shift (as it should and must) onto the strategic, tactical politics and the substantive policy-making in an EU of 25.

Kirsty Hughes is Senior Fellow at the Centre for European Policy Studies in Brussels and Coordinator of EPIN (European Policy Institutes Network).

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