The European Commission and the IGC: A carefully argued middle course

This paper analyses the recent opinion of the European Commission on the Intergovernmental Conference (IGC).

“Playing with fire” were the words used by MEP Klaus Hänsch and Convention vice-chair Jean-Luc Dehaene in commenting on the recent opinion of the European Commission on the forthcoming Intergovernmental Conference (IGC). The two former members of the Praesidium of the European Convention so keenly wished the IGC to simply sign the Constitutional Treaty prepared by the Convention that they seem determined to turn a blind eye to any imperfections that may remain in the proposed text. However, when one recognises that the IGC is bound to enter into some negotiations, the lead of the Commission warrants commendation.

Notably, the Commission emphatically asserts that “[d]espite its reservations on the matter, the Commission does not propose to bring into question the [institutional] compromise which the Convention reached after prolonged debate” (p. 9). Thus on the central debate to which the national governments are already warming up, the Commission is actually on the side of Convention loyalists like Dehaene and Hänsch. However, the Commission does note – and quite rightly so – a need for clarification of some of the institutional provisions. In particular the Commission is concerned to prevent the present ambiguous provisions from leading towards the creation of a ‘parallel EU executive’ through the emergence of some form of team presidency in the Council. For that reason it insists on reinforcing the distinction between the Council and the European Council and its permanent President, limiting the chairmanship term of Council formations to no more than one year and a separation of Council law-making from the work of the General Affairs Council.

For the rest, partly reacting to the wish-lists of national governments that are already in circulation, the Commission presents a clear perspective on the agenda of the IGC focusing on four fundamental ‘issues for improvement’. Naturally one can argue about the selection of the four major issues for improvement. Still both its selection and analysis of the issues exonerate the Commission from the charge of pushing its own institutional interests and indeed do live up to its claim to be the ‘defender of the general interest of the Union’. The Commission’s points start from genuine ambiguities and real problems. Admittedly though, as I will demonstrate for some issues below, the analysis of some problems turns out to be more convincing than the solutions proposed.

The latter objection probably least applies to the first issue addressed: the composition of the Commission. Although people like Dehaene and Hänsch will probably go to some length to argue to the contrary, the Convention’s proposal on this issue has all the features of a hard-fought compromise or, as the Commission (p. 5) puts it, it is “complicated, muddled and inoperable”. The Convention proposes to reduce the size of the College of European Commissioners to fifteen so as to ensure its effectiveness and cohesion. By implication during each term there will be some countries without a voting Commissioner. As compensation, a strict system of rotation is set out (which is unlikely to be maintained in the long run against the pressure of the big Member States to have a voting commissioner ‘of their own’) and a post of non-voting ‘junior’ commissioners is introduced (which undermines the size reduction initially aimed for, at least in part).

Notably at the heart of the Commission’s argument does not lay a concern about having all Member States present in the College, but rather its conviction that each member of the College should have the same rights and obligations. The Commission invokes ‘the principle of equality of all members of the Commission’ as fundamental for sustaining the collegiality of the College. It suggests that with the introduction of a constitutional split between two kinds of Commissioners, few guarantees for strict collegiality and against national in-fighting and lob bying remain. To safeguard these guarantees it accedes to the presence of all Member States in the College.

In turn, to secure effectiveness and cohesion in the College, the Commission proposes a more flexible approach to the internal organisation of the College. It suggests that much of the work of the Commission could be done by groups of Commissioners organised around their main spheres of competence. The Commission President is to play a key role in structuring these groups. Also the general guidelines that are to be drafted by the President and agreed by the College would become of much greater importance.

Overall the Commission proposals on the organisation of the Commission are far more consistent than those of the Convention. By providing for one voting Commissioner for each Member State, they also meet objections raised by many Member States, not least the new ones. Moreover, rather than casting the Commission’s structure in (constitutional) stone, they allow for some flexibility for the Commission President in determining the appropriate mode of organisation.

The Commission is notably silent on one issue and that concerns the election of the Commission President. While the Convention formally grants the power to elect the Commission President to the European Parliament, it dilutes this provision by giving the European Council control over the nomination procedure. Surely, as the Commission’s proposals only serve to increase the importance of the figure of the Commission President, there is a need to come clear on the election procedure by giving the Parliament the upper hand while ensuring the assent of the European Council.

As a second major issue the Commission expressed its concern about maintaining the requirement of unanimity in the Council on too many issues. For sure, the requirement of unanimity is bound to become problematic in a Union of 25 Member States and more. Still it is doubtful whether the Commission’s analysis suffices to convince Member States to relinquish their blocking power on issues they feel strongly about. The Commission is probably right that some extension of qualified majority voting might be attained by having a closer look at the definition of the competences involved, although many competences, especially those in the field of justice and home affairs, have already been closely scrutinised by the Convention. Eventually a more structural solution is likely to involve the introduction of a new voting rule. Here the Commission may well be on the right track in suggesting that unanimous voting may be redefined in such a way that after a certain period of deliberation, one or two Member States could no longer be able to prevent any decision from being taken.

The third issue for improvement is one that everyone recognises but for which no one has offered a satisfactory solution so far: revision of the Constitutional Treaty. The experiences with the Danish referendum on the Maastricht Treaty and the Irish referendum on the Nice Treaty reveal that Treaty changes should not become hostage to one Member State. At the same time these situations are not credibly dealt with by simply writing out another referendum until the people yield. The Commission suggests that at least the policies of the Union (Part III of the Constitutional Treaty) should be subject to revision by a supermajority of 5/6th of the members of the European Council and without requiring national ratification. Still within the Convention itself, Commissioner António Vitorino was among the first to realise that Part III of the Constitutional Treaty contains some provisions of particular political sensitivity. Insisting on different revision procedures is bound to invite calls from all over Europe to have sections of it again transferred behind the safe walls of the constitutional Part I. What is more, the Commission solution fails to appreciate that future revisions may well first of all affect Part I of the Constitutional Tr eaty. If one looks only at the articles on the European Council, the Council formations, the Commission composition and the Common Foreign and Security Policy, Part I clearly contains a number of ambiguities that will only allow for final resolution in due course.

An alternative and more comprehensive solution might be found by elaborating the provision (Art. IV-7.4) that now calls upon the European Council to consider the situation if two years after the signing of a revised Treaty one or two Member States are unable to ratify it. The key to dealing with such a situation would be to put the burden on the Member State(s) unable to ratify. For instance, one could provide for a term (of, say, another year) in which these Member States would find a solution so as to allow the others to start operating under the revised treaty. Within this term these Member States would basically have the option of either securing ratification in their own country, or negotiating some exceptional status with the rest of the Member States, or exercising the right of withdrawal as is now provided for in the new Constitutional Treaty.

The final issue featured by the Commission concerns economic governance and draws obvious inspiration from the present failure to commit member states to the macroeconomic principles that have been agreed upon at the European level. Nevertheless, in light of the importance of the issue, the suggestions of the Commission remain rather procedural and even seem to miss the point. Apparently the Commission shies away from claiming too much of a position for itself as the much-needed arbitrator and enforcer. A credible macroeconomic policy would require granting the Commission the power to propose sanction measures, rather than simply the right to propose the Broad Economic Policy Guidelines. Along the same lines, the Commission might have drawn on the example of the post of a Union Minister for Foreign Affairs to strengthen the powers of the Commissioner for Economic Affairs.

Overall then the Commission opinion comes out as a carefully argued middle course navigating between, on the one hand, the rigidly defensive attitude of some former Convention members embellishing its conclusions (an attitude that also prevails in the rather obligatory IGC opinion issued by the European Parliament) and, on the other, the aggressive rhetoric used by some of the governments participating in the IGC.

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