The Convention on the Future of Europe – A First Assessment

This analysis states that the reform of the EU falls short of matching the critical challenges it face and it may take the trauma of further crises for the Union’s political leaders to come to terms with the scale of the institutional reform and policy development which will be required in the years ahead.

Introduction

Despite much bitterness and divisions between “big and small” – as well as supporters and opponents of closer European integration – in recent months, President Valery Giscard d’Estaing will be able to present a draft Treaty to the European Council based on a broad consensus among the 105 Convention members who successfully kept one eye on history. The danger of including options in the text, thereby weakening its overall political impact, has been averted. Given the lack of political ambition in several Member States, notably the United Kingdom, which last week postponed a decision on joining the euro, the draft probably represents the maximum currently obtainable.

In the light of the views of the government representatives in the Convention, it is doubtful whether the Intergovernmental Conference (IGC) will be able to improve the texts from the perspective of efficiency and democratic legitimacy. Indeed since they were fully represented in the Convention process itself, it would not be appropriate for the IGC to re-open the Convention texts.

If the reform of the European Union has failed to match the critical challenges it faces at home and in the outside world, these failures are not primarily institutional. Rather they reflect a more profound failure of political will. This is most dramatically expressed in the policy field. It may take the trauma of further crises for the Union’s political leaders to come to terms with the scale of the institutional reform and policy development which will be required in the years ahead. While there are a number of significant steps forward that should be welcomed, judged against the criteria by which the Convention was established, the result is not impressive.

The Criteria for Success

The Laeken Declaration acknowledged the failure of previous attempts at EU reform and set up the Convention with an open mandate. It was then clear to national leaders that the Union required a comprehensive overhaul to face up to citizens’ expectation and to an evolving international context. This explicitly applied both to the institutions and to the policies of the Union. Laeken included the four points listed in the Nice Declaration on the future of the Union – the role of national parliaments in the EU, the status of the Charter of Fundamental Rights, the division of competences between the Union and Member States and simplification of the Treaties – and added many others. These included sensitive matters such as the election and size of the Commission, the rotating Council presidency, the external representation of the Union and the preservation of the institutional balance at large. Moreover, Laeken mentioned for the first time the idea of providing the Union with a fully-fledged Constitution, replacing the long string of overlapping Treaties.

How did the Convention perform in tackling these tasks? Does the draft Treaty make the Union more democratic, more transparent and more efficient? The overall assessment, is that while there are some significant improvements, the draft text does not go far enough in equipping the Union to cope with the challenges ahead, as the Convention was mandated to do by Laeken.

Positive Points

The new Treaty contains a number of positive elements that should be welcomed. These include:

• The simplification of qualified majority voting (QMV) better reflecting population
• The extension of majority voting in the Council of Ministers
• The EU gaining legal personality
• The simplification of the Treaties into a single document. (This simplification is a step towards greater transparency but the institutional structures, as well as the voting system, remain too complicated for most citizens to readily understand).
• The incorporation of the Charter of Fundamental Rights
• No material diminishing of Union competence
• Streamlining of the Commission
• An increased role for the European Parliament (EP), especially due to the extension of the co-decision procedure (now ‘ordinary legislative procedure’) and the ultimate say over all EU expenditure
• The movement of several Justice and Home Affairs (JHA) policy areas into the Community sphere
• The establishment of an EU Foreign Minister
• Recognition of the Eurogroup as a separate decision making body. (The agreement to allow for the eurozone countries to take collective decisions on economic issues by QMV and to agree appropriate measures to ensure unified representation of the Eurozone in international organisations marks a significant advance.)
• Simplification of instruments and procedures. There will be enhanced involvement of national parliaments, but short of blocking the decision-making machinery.
• The preservation of the passerelle clause whereby the European Council can decide, by unanimity, to extend the ordinary legislative procedure where special procedures still apply, and to replace unanimity with majority voting
• Solidarity clause involving mutual assistance in a security or humanitarian crisis
• Citizen’s right to call upon Commission to propose legislation (if 1,000 000 signatures are obtained)

Negative and Questionable Points

• The welcome extension of QMV to a number of new legal bases does not make up for the clear failure in applying some form of majority voting to common foreign & security policy (CFSP), trade policy in relation to intellectual property and services, fiscal policy, Article I-17 on EU competences, and future revision of the Treaty. Considering the impact of enlargement, this amounts to imposing on the EU a suffocating straitjacket in areas of key importance.
• Although there is much to be said for the Union being strategically led by an effective European Council which concentrates on its leadership role – and does not waste its time exercising the arbitrating role which the GAC so often fails to fulfil – the establishment of the European Council as a new institution with a permanent chair could well unbalance the institutional framework: consequences are hard to predict, as much will be left to practice. This reform is unnecessary but became a cause célèbre for the larger Member States. Last minute amendments excluded any legislative power for the European Council and limited the tasks of its Chairman by associating the President of the Commission with the preparation of the European Council. This is a step in the right direction.
• The failure to agree on a clear separation of the legislative and executive functions of the Council has exacerbated the complexities already inherent in the present system involving shared executive competences between the Council and the Commission.
• On the democratic front, there is still no readiness to give future Presidents of the Commission their own democratic mandate. There are some increased powers for the European Parliament but it is the European Council and not the EP that has the decisive say on the nomination (one cannot seriously speak of “election”) of the Commission President. The best hope is that – despite this setback – the European political parties will bring the issue to voters in European Parliament elections by nominating their preferred candidates for the Commission Presidency. This would certainly increase the pressure on the European Council to really take into account the results of the European Parliament elections and carry out adequate consultations in making its nomination to the EP.
• The failure to break the link between Commission and Member States as far as both the size of the Commission and the procedure to appoint the Commissioners are concerned.
• Reluctance to embrace meaningful increase in QMV in CFSP. The creation of a new post of EU Foreign Minister may prove an empty shell if the basis of decision-making remains unanimity.

External Policy

An improvement in the external affairs machinery was one of the prime goals of the Convention. Laeken spoke of the Union needing to improve its external clout, a desire widely shared by EU citizens. Regrettably the Iraq conflict demonstrated vividly the disarray of the Union in foreign policy and led to a weakening of the draft articles that emerged from the Dehaene and Barnier working groups. The main change relates to the new post of EU Foreign Minister that will combine the roles currently played by the High Representative for CFSP, Javier Solana and the External Affairs Commissioner, Chris Patten. It was originally proposed that initiatives coming from the double-hatted Foreign Minister and supported by the Commission would be decided by QMV. In the final text, however, this proposal was dropped under British pressure. Intergovernmental procedures will continue to rule most, if not all, policy decisions. On a more positive note, the creation of a European diplomatic service, replacing fragmentation between the Commission’s services and the Secretariat general of the Council was announced. This is an important step to foster the development of CFSP from the bottom up.

The various articles on external affairs are grouped together under Title V, which slightly improves transparency. But each policy area is subject to different rules and instruments, which is a blow to transparency. These include commercial policy, development cooperation, humanitarian assistance, economic, financial and technical cooperation, sanctions policy, international agreements, relations with international organisations and third countries, and provisions to implement the solidarity clause. There is no European Court of Justice jurisdiction over CFSP. There is no real improvement in the EP’s involvement in CFSP. It will merely be “regularly” consulted.

As regards enhanced cooperation in security and defence policy three levels are envisaged. First, there is a formula relating to crisis management operations involving some but not all Member States and acting in the name of the Union. Second, there is provision for ‘structured cooperation’ allowing Member States to develop stronger military capabilities and equip themselves to take on more demanding tasks. Finally there is also provision for those Member States wishing to give one another a mutual defence clause.

Conclusion

Since discussion continues on Part IV, including clauses for Treaty amendment, further thinking on how to abandon the requirement for unanimous national ratification is recommended. Likewise, the work on Part III provisions will be of key importance in determining the actual extension of majority voting across sectoral provisions. Some advance might also be envisaged for CFSP under Article III-196. It also remains to be seen whether the proposed new role for the eurozone countries will translate into more effective economic governance with appropriate policies to strengthen the economic pillar of EMU. The reluctance to make QMV the general rule is unlikely to promote efficiency in a Union of 25 or more Member States.

Fraser Cameron is Director of Studies at the European Policy Centre.

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