The last week of the Convention: boulevard or minefield?

The paper argues that, while some progress on institutional issues has been achieved by the Praesidium, consensus on a constructive compromise cannot be taken for granted, and the last week of Convcention’s debate will be of crucial importance.

As the end approaches, things are moving in the Convention. It is, however, difficult to judge in which direction. Whether the Convention will be a success and a constructive agreement, not simply a ‘catch-all’ compromise on institutional questions, is far from clear. Early claims of support might be deceptive, when the actual basis for compromise, a final text, is still not available. Unquestionably, the Praesidium took some positive steps towards an acceptable solution on Friday 6 June. But it is to be seen whether this will be enough to meet the increasingly heterogeneous concerns of Member States, and above all to compensate for the absence of shared vision that sadly emerges after one and a half years of debate.

Reasons for concern

First, alleged progress towards a consensual solution still hides a number of obstacles. While the members of national parliaments (MPs) and the members of the European Parliament (MEPs) broadly supported the latest draft on institutions presented by the Praesidium on Friday 6 June, representatives of national governments still held significant reservations on a vast array of issues. In particular, representatives of candidate countries stated (after the presentation by Giuliano Amato) that the new draft poses as many questions as it solves.

Second, negotiations are complicated by the fact that the Convention has become a body of ‘multiple geometry’. Meetings of the Praesidium, of the three constituent parts (MPs, MEPs, government representatives), of political caucuses and of issue-based groups have largely emptied the plenary of political relevance. It is to be seen whether informal, bilateral contacts will be conducive to more ambitious solutions than those already achieved by the Convention working as a cohesive body.

Third, the context of the institutional debate in the Convention has substantially, and unexpectedly, changed. On Monday 2 June, nine countries, led by Spain, signed a letter advocating the preservation of the compromise reached at Nice on the weighting of votes in the Council, the distribution of seats in the European Parliament, and the size and composition of the Commission. On Wednesday, the group of national governments backing the Nice solution expanded to 18. A new battle line has emerged, diverting the focus of the debate from what is essential – preserving the Community method, enhancing EU performance in CFSP and extending majority voting – to rearguard confrontation on provisions that all national leaders condemned as impractical and obscure two years ago.

Another fundamental innovation – a legislative Council separated from executive Council formations – received the support of only two countries, namely Italy and France. This was, in a nutshell, the frustrating outcome of the meetings held by the Praesidium on Wednesday 4 June, with the three components of the Convention.

Convention or Intergovernmental Conference?

The plenary session of Thursday afternoon 5 June reflected the deep concern among its members that compromise might not be achieved. Some members of the Convention forcefully remonstrated that public debate should not be replaced by secretive negotiations, and the Convention method should not be suffocated by a hidden Intergovernmental Conference (IGC). Olivier Duhamel opened the session with an extraordinary attack on “some” government representatives, who look at their narrow interests and not at the common one, and are undermining the Convention. A 105-strong body, he felt, should not be blocked by a few members with insurmountable reservations. On the contrary, government representatives should be confronted with the political responsibility of potential failure. Michel Barnier, as well as Elmar Brok, Josep Borrel and a number of other Convention members, shared this sentiment, calling for greater readiness to compromise, in the common i nterest. Such emphasis on the need to prevent an intergovernmental takeover is, however, the best evidence that a drift in this direction is well underway.

Treaty or Constitution?

Various speakers warned against hypocrisy in defining the output of the Convention. According to Elena Paciotti, a Constitution cannot require unanimity and national ratification for its amendment: it would only be an international treaty. Borrel, Brok, Pierre Lequiller and others made the same point. Alain Lamassoure proposed to overcome what he defined “reinforced unanimity” by introducing two procedures to revise the Constitutional Treaty, one light (super-QMV) and one heavy (Convention and super-QMV), depending on the provision. Interestingly, he added that, since a clause of voluntary withdrawal has been introduced, there is no need to preserve unanimity for Treaty amendments. One country would be free to leave the Union if put in a minority on one aspect of Treaty amendment. Gisela Stuart and others, however, strongly disagreed with establishing this linkage between the two provisions: Member States would feel threatened and their constitutional specificities would not be respected.

This debate reflects at the level of Treaty revision the ‘eternal’ confrontation between the principle of unanimity and the principle of majority voting. Turning to policy matters, a vast majority supported the extension of QMV, or super-QMV, to decisions on foreign and security policy. Baroness Scotland, however, made clear that a government that cannot determine its foreign and security policy would not govern for long, and that the UK is not willing to replace NATO with other groups to guarantee its security. In the absence of a common policy, she argued, majority voting is irrelevant.

Reasons for (moderate) hope: towards a new draft

Confronted with new and growing cleavages between Member States, the Praesidium gave the impression of being taken by surprise. For the first time, the perspective of a macroscopic failure of the Convention in delivering an efficient and democratic institutional framework looked real. The long awaited, and much-needed, initiative of the six founding Member States to overcome the blockage and submit the basis for an ambitious compromise did not materialise. On the contrary, the lack of strategic leadership showed by some key players, notably France and Germany, left wide margins of manoeuvre for those, notably Spain and the United Kingdom, who feel that there is no price to pay for simply saying no to meaningful progress.

Following the inconclusive discussion on Thursday afternoon 5 June, the Praesidium met on Thursday evening in an extreme effort to wrap up a compromise on institutions and majority voting. Valéry Giscard d’Estaing, Amato and Jean-Luc Dehaene decided to meet the three constituent parts of the Convention separately on the following morning to outline the new draft text, which was however not circulated.

It is fair to say that the Praesidium has made some progress towards meeting the concerns and priorities of the various actors in the Convention. This is not, however, necessarily conducive to a coherent and ambitious outcome. In fact, a number of innovations have been hurriedly included in response to the red lines drawn by national governments over the last few days. On the other hand, Giscard, Dehaene and Amato have made it clear that they will not accept further compromise on three essential points: the long-term President of the European Council; the size of the Commission; and the Legislative Council responsible to enact, together with the European Parliament, all EU legislation. The stage is set for the final confrontation. The essential provisions, Giscard to the members of national parliaments, can be divided between positive, negative and of ambiguous value with a view to reach a constructive compromise next week.

Positive

• Super-QMV (2/3 of Member States and 4/5 of population) is envisaged for decisions which are not based on a proposal of the Commission. This is important, as relevant policy areas include Justice and Home Affairs and CFSP.
• An enabling clause is included, whereby the European Council can decide by unanimity to replace unanimity with majority voting, and to extend the ordinary legislative procedure (co-decision) to residual cases where either the Council or the Parliament can, separately, adopt legislative acts.
• It is explicitly stated that the General Affairs Council (GAC) and the Commission shall prepare and follow up the work of the European Council. Moreover, the multi-annual working programme of the Union is to be established by inter-institutional agreement upon the Commission’s proposal.
• There is to be an EU Foreign Minister, who will be a Commission Vice-President and will chair the Foreign Affairs Council.
• While the new Commission, in 2004, will include one Commissioner per Member State, from 2009 the College will have a two-tier system of 15 voting Commissioners (rotating equally between the Member States) and the remaining non-voting.

Negative

• The procedure to appoint the President of the Commission has not been amended. The European Parliament will simply be able to confirm or to reject the European Council’s nominee. This means, in practice that the European Council will appoint its own Chairman, the President of the Commission and the Foreign Minister. This is not a balanced solution. In particular, the position of the President of the Commission seems far too weak compared to the new Chairman of the European Council.
• The GAC and the Legislative Council are merged in one formation. This makes the division of powers in the Union more blurred and prevents, in the medium-term, closer cooperation between executive Council formations and the Commission. However, legislative and executive activities remain separated: for example, the Council will meet in public when carrying out legislative functions. It is still unclear, however, how this distinction will work in practice.
• Rotation is maintained for all Council formations except for the Foreign Affairs Council. Different countries will chair different Council formations for one year. This leaves the door open to team presidencies, but it is not clear who would coordinate them. National governments do not accept that the Commission be given this task, and refuse the appointment of a powerful European Minister in each national government, who would have the authority to coordinate his national colleagues. The Chairman of the European Council remains therefore the only strong candidate to ensure coordination.
• There is insufficient extension of QMV. In particular, majority voting is not extended to treaty amendment.

Ambiguous

• The double majority formula (1/2 of Member States and 3/5 of population) enters into force in 2009. The European Council, however, can decide by QMV to apply the complex Nice formula for three more years. This would allow Spain to preserve its comparative voting advantage until the negotiations of the financial perspectives 2013-2018.
• The powers of the Chairman of the European Council are limited, on paper, to non-executive business. The board within the European Council has been removed. However, Giscard recalled that nothing would prevent the Chairman from constituting such a board. Unfortunately, that applies to a number of other potential initiatives of this new long-term, full-time Chairman, which could unbalance the institutional framework.
• The role of Chairman of the European Council is compatible with holding offices in other EU institutions (but not with national mandates). However, Giscard quickly mentioned that the nationality of the President of the European Council, of the President of the Commission and of the Foreign Minister should be different. Were this provision included in the new draft, it would prevent, in the long-term, the integration of the two presidential positions.
• Before 2009, the European Council will decide, on a proposal by the European Parliament, the size of the Parliament and the distribution of seats on the basis of the principle of digressive proportionality. Until then, Nice will apply (732 MEPs).

An early assessment

The drafting of the new text was admittedly a very difficult exercise, conducted on a tightrope with perilous winds blowing from all sides, and with a hair-raising deadline. The new draft is a step ahead, but it does not go far enough. Assessed in the light of recent events, such as the Iraq crisis, and future developments, such as enlargement, the new institutional structure seems unlikely to deliver what is needed. The preservation of differences seems to prevail on the need for political cohesion, and a strong institutional ‘centre of gravity’ able to manage increasing diversity, is not in sight.

However, this is what has been achieved in the current circumstances, in particular following last week’s events. It is legitimate to voice discomfort at the poor attitude, and absence of vision, showed by some, but it would not be practical to stop there. Three recommendations are of key importance for the last week of Convention’s work:

It is imperative to extend some form of super-QMV across the board, if necessary through enabling clauses envisaging an automatic switch to QMV or super-QMV after a limited number of years.

Super-QMV in the Council should also apply to the revision of most, if not all, constitutional provisions. Non-unanimous national ratification should be required only when new competences are attributed to the Union. Opt-outs should be envisaged for those countries unable or unwilling to accept a specific amendment: the alternative is constitutional stalemate.

The President of the Commission must be given more political authority: he or she should be elected by the European Parliament, and confirmed by the European Council. The President should be given a clearer role in the preparation and follow up of the European Council. The best option would be that he or she chairs GAC.  

Giovanni Grevi is Associate Director of Studies with the European Policy Centre.

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