The process leading to the IGC

The upcoming institutional reform will lead to major changes in the functioning of the European Union. Only the Convention method can achieve the transparency and the involvement of citizens necessary to legitimise the process.

Key recommendations

1. The key recommendations contained in this paper are as follows:

1.1. A Convention should precede the intergovernmental conference (IGC). It should draft a comprehensive text (made up of all recommendations that were adopted) that will serve as a basis for negotiations at the IGC.

1.2. The Convention should gather the President of the Convention, who will be appointed in Laeken, 27 government representatives from Member States and accession countries, 54 from Member States’ and accession countries’ parliaments, 30 from the European Parliament and one representative from the Commission.

1.3. The recommendations presented by the Convention should be adopted by consensus, wherever possible. Where there is no consensus agreement, ‘minority options’, supported by at least 20 members of the Convention, could be expressed.

1.4. The Presidium should consist of the President of the Convention and four Vice-Presidents, each from one of the component part (European Parliament, European Commission, national governments, national parliaments). At least one of them should represent the accession countries. It should be assisted by an inter-institutional Secretariat, responsible for the drafting of legal texts and for overall legal consistency.

1.5. For a smooth transition between the Convention and the IGC, the Presidium of the Convention should monitor the IGC. The President of the Convention should be an experienced and well-known politician. He or she should take part in IGC meetings.

Introduction

2. The European Council to be held in December at Laeken will decide the features of the process leading to the next IGC. Up to now, all changes of a constitutional nature have been handled directly (and exclusively) by governments within IGCs. But the next move will be different on two accounts. First, the IGC will be centred on no less than ‘The future of Europe’. If this is not important enough to reach all citizens, what is? Second, the people of Europe require more openness in the process and more clarity as to the choices to be made. European leaders are aware of it and they should act accordingly.

3. An IGC is particularly ill suited to accommodate the needs of citizens, as it takes place behind closed doors. The main objective, therefore, is to ensure that the ‘Convention method’ takes precedence over the usual intergovernmental procedure. However, an IGC will be convened anyway (in 2003 or 2004), so that the essential phase, involving a ‘Convention’, will actually be the one preceding the IGC .

4. While a number of aspects are still unclear, the very idea of a Convention seems to command a broad agreement among European leaders, which was confirmed by the informal meeting of EU Foreign Ministers held in Genval on Sunday, 9 September. The proposal to also hold a Forum as a link between civil society and the Convention can be considered a major step towards an open and legitimate process.

5. The basic principles for a successful Convention are well known: it must be legitimate, inclusive, efficient and democratic. However, when it comes to concrete choices, the best way to achieve (and sometimes to reconcile) those principles is not always clear.

Who should take part?

6. It is undisputed that representatives of national parliaments and of the European Parliament should be members of the Convention. The presence of the Commission is certainly necessary. As a collegial institution, it cannot be represented by more than one person, most probably the Commissioner in charge of institutional reform, Michel Barnier. Given the importance of this exercise, the participation of the Commissioner himself is certainly appropriate in terms of political weight.

Member State governments

7. For various reasons, Member State governments should take part. First, this would enhance the legitimacy of the Convention, forcing governments to be actors rather than mere observers or even superior instances to which the Convention would report. Secondly, this is undoubtedly the best way to ensure that the Convention’s proposals are taken seriously by the IGC.

Accession countries

8. Accession countries deserve particular consideration. Since the Convention will not be the body taking the final decision, their involvement cannot be rejected altogether on the grounds that representatives of the current Member States only should decide on the future of the EU. In fact, this will be the case at the IGC. After all, enlargement is the main reason for reform – and failure to take into account the needs and specificities of accession countries could lead to a stalemate by the time these countries will be required to ratify the new Treaty.

9. Should their representation equal that of Member States? A positive answer to this question, as advocated by Commissioner Barnier at a seminar in Warsaw (16 July 2001), would be a powerful symbol, the first concrete step towards enlargement and a prestigious opportunity for candidates to be involved in Community mechanisms. Therefore, accession countries must be represented as ‘insiders’.

10. It would be considered politically unacceptable if candidate countries were admitted only as observers with a special right to be heard. Their right to have their voices fully taken into account while their own future is being shaped must be recognised. They should therefore be admitted to take part in the work of the Convention on the same terms as current Member States and they should also be able to vote on an equal footing with other Member States. This is all the more necessary because candidate countries will not be present when the process reaches the final stage (i.e. at the IGC). The full representation of candidate countries in the Convention will give more weight to the final text drafted by this body.

11. A practical consequence of including representatives from accession countries would be a substantial increase in the number of national state representatives. To preserve the overall balance within the Convention, the number of representatives from the European Parliament should at least match the number of representatives of the Parliaments of current Member States. Having only one representative per national government and one per national Parliament for each Member State – instead of one representative per national government and two per national Parliament in the Convention that drew up the Charter of Fundamental Rights – could be an alternative. There are, however, good reasons to favour the first solution as it allows representation of both chambers (where they exist) and possibly of the majority and the opposition .

12. As a result, the Convention, with 113 members, will be considerably larger than the one that drafted the Charter of Fundamental Rights. This should not, however, be regarded as an obstacle. History provides a number of examples of large bodies drafting texts of a constitutional nature . If committees carry out the bulk of detailed work, even a larger Convention could still work efficiently. The plenary could avoid technicalities by discussing only essential questions and taking a position on each final proposal made by the various committees. Moreover, working within small Committees would have the advantage of facilitating the mutual understanding between members of the Convention with very different backgrounds.

Regions

13. Another contro versial point is the status of the regions. The legitimacy of participation of constitutional regions cannot be denied. This would however, introduce an element of asymmetry in the debates of the Convention. The fragile legitimacy and the heterogeneous composition of the Committee of the Regions make this institution unsuitable for sending representatives to the Convention. The right (for constitutional regions) and the possibility (for other regions) to be heard by the Convention would be a balanced solution. Alternatively, a non-discriminatory (and therefore, more politically acceptable) way to proceed would be to allow one collective regional contribution by Member State. This would constitute a strong incentive for regions to cooperate – with some risk of duplication in cases where the second chamber of Parliament is only made up of regions, as in Germany or Austria, for example.

Civil society

14. The involvement in the debate of NGOs and other civil society experts is essential. Since their legitimacy is sometimes questioned, their role in the formal decision-making mechanisms of the Convention cannot be on the same basis as that of elected representatives. The Convention, however, should be able to take evidence and consult them on a clearly established basis. One could also imagine a special right to be heard for Members of the Economic and Social Committee or, more plausibly, for each category represented in this Committee. The main role of civil society is rather to act as a catalyst for debate. NGOs would be represented in the Forum, where they would be free to comment on the proposals of the Convention and, above all, to function as a relay between the Convention and public opinion.

What kind of text will the Convention write?

15. Two alternatives can be considered:

• A comprehensive and consistent constitutional text is produced – a solution favoured by the European Movement and many MEPs. The legitimacy of the text would be such that it would be difficult for the IGC to modify it – of course, this depends crucially on the way the Convention reaches decisions. While this reflects the fundamental change embodied in the Convention method, governments will be very reluctant to join a Convention whose results are felt to be politically binding on them.
• The Convention elaborates a structured text presenting various options on a limited number of items – even though it is clear by now that the proposals will go beyond the four key issues mentioned in the Nice Declaration . This method currently seems to be favoured by many Member States.

16. A wide range of mixes between these solutions is possible; the detailed arrangements depend very much, of course, on the way other aspects are settled. For instance: only issues where the Convention has not been able to reach a decision by unanimity could be left open in the final text (see below).

17. What has to be avoided is to end up with a ‘shopping list’ – with several proposals for each single issue where unanimity could not be reached. This would entail two dangers. First, it would completely ruin the benefits of the Convention method. Drawing up a list of all possible outcomes is a technical task that would be better suited to a panel of civil servants preparing an IGC. The Convention must, on the contrary, concentrate on the essential choices to be made and give a clear indication of which political forces stand behind each option. Second, providing the IGC with nothing more than a series of proposals puts the basic aim of consistency at risk. The usual (and, in itself, legitimate) bargaining process would not start on the right basis. The outcome of the IGC would unduly enjoy the enhanced legitimacy stemming from the Convention process but it would not be substantially improved by the work done by the Convention itself. The Convention is an innovative way of making essential decisions more democratic and is should not become a mer e instrument for in legitimising an old-style IGC.

How will the Convention decide?

18. At first sight, the case for unanimity is strong. Firstly, a text of constitutional nature should undoubtedly be based on the broadest possible agreement. Secondly, the draft (be it a text or a series of recommendations) will possess the highest possible legitimacy, making it most difficult for the IGC to amend it substantially.

19. However, it is very unlikely that unanimity will produce a coherent draft proposal and, indeed, that unanimity will be reached on many subjects. Therefore, the risk of ending up with the lowest common denominator would destroy the initial ambition of the Convention method to nothing. A Convention based on unanimity would be like an IGC (since it would include Member State governments) handicapped with more participants.

20. Consensus should be sought to form a “recommendation” on each of the proposals submitted by the Committees. Where consensus cannot be reached, a recommendation can be issued, nevertheless, if there is an absolute majority of the members in favour. In that case, a minority (at least twenty members, for instance) could propose a “minority option”. This would allow for a variety of opinions where required, while putting considerable political weight behind the recommendation to be submitted to the IGC, thereby enhancing the political impact of the outcome of the Convention on intergovernmental negotiations. In practical terms, all recommendations should be integrated into the final text to be submitted to the IGC with other options listed in footnotes as appropriate.

21. Thus, the Convention will not vote. Only ‘constructive’ negative votes will be registered as minority options. Among its many advantages, this method makes the distribution of seats less decisive. Of course, the distribution of seats inevitably will be the subject of bargaining. Without a formal vote, however, it will not be possible to dismiss the text adopted by the Convention as essentially flawed as a result of an allegedly illegitimate allocation of seats.

22. The detailed breakdown supported by this paper is summed up in the Annex and compared with that advocated by the European Movement.

President, Presidium and Secretariat  

23. The Chairperson will also be of crucial importance. Some names are already circulating, but the final decision will be taken by Heads of States and Governments in Laeken in December 2001. Without any particular personality in mind, the following qualities would constitute definite advantages: already well-known to European citizens; respected politician with experience of government and a strong sense of the need for consensus; available on a full-time basis; at ease with the media; and possibly multilingual in order to communicate directly with the public in several Member States. The Chairperson should be given time (three months, for instance) to prepare the Convention and hold extensive consultations.

24. The Presidium should consist of the President of the Convention and four Vice-Presidents, each coming from each of the component parts (European Parliament, European Commission, national governments, national parliaments). At least one of them should represent the accession countries. The main task of the Presidium should be to assist the President in the practical organisation of the Convention. In particular, it should decide when and how committees are formed, how they work and who can be heard by the plenary. Except for the few rules outlined above, the Convention should be able to adopt its own internal procedures.

25. A small Secretariat, made up of a dozen of civil servants, should provide administrative and legal support to the President and the Presidium. It should prepare and coordinate the work of the plenary and the committees, advise members of the Convention and, especial ly, the Presidium, on legal aspects and draft the final recommendations and options. Given the intrinsic inter-institutional nature of the Convention, the Secretariat should draw its expertise, on an equal basis, from the Council, the Commission and the European Parliament. Officials from Member State parliaments and, possibly, representatives of the Court of Justice, could usefully be associated with the work.

How will the transition between the Convention and the IGC be organised?

26. To improve the link between the Convention and the IGC, the Presidium of the Convention should remain in place even after the Convention and enter in a dialogue with the IGC. The President of the Convention should be allowed to take part in IGC meetings, without voting rights but with a right to express his or her view. Members of the Bureau could also play an important role in presenting the interim results of the IGC to the general public.

27. At this crucial point, the uniqueness and the specificity of the Convention method should be preserved. Thus, it would be perfectly acceptable to have a short and decisive IGC following directly the end of the Convention process. The main advantage would be that the thrust of the political debate is sustained, so that the IGC makes clear decisions – under the control of public opinion.

28. A preparatory IGC, preceding the actual meeting of Ministers, would have little justification: whatever its form, the work of the Convention should be such that it can serve as a basis for negotiation.

29. Another idea, floated by the European Movement, is that “the Community method for decision-making (EP / Council shuttle with the help of the Commission) should be used in a first stage” after the Convention. This should be rejected as is does not offer the necessary efficiency and transparency (neither Council meetings nor Conciliation committees being public) and would mostly duplicate the work done by the Convention.

30. A radical alternative would be to have a partially public IGC. This does not mean that actual negotiations between Member States should take place in front of television cameras. Instead, the IGC could hold some formal sessions in public to provide greater clarity of the issues at stake and the various positions of Member States clearer. However, the strong opposition of Member State governments could only be overcome by placing huge political pressure on them, which would make them reluctant to be put in the position of calling for greater secrecy.

Conclusion

31. Finally, there are three more general questions that are closely related to the process and are relevant to it, no matter the final choice.

32. Firstly, once a position has been reached on the process, serious thought must be devoted to the timing – with many elements to be taken into account. The IGC should probably take place in late 2003. The new Parliament and Commission will thus be elected in 2004 as the ratification process will underway throughout Europe. This should cater for a broad debate on Europe. How this will fit in with the agenda for enlargement is not clear. In particular, it seems reasonable that the first new Member States should only enter the Union once the internal reform process is complete. Otherwise, they would suffer from the complexity of the ‘old system’ for a (short) while and have to adapt to yet another institutional framework soon after. Therefore, the aim should be the contemporaneous ratification of the new Treaty and of the accession treaties.

33. Secondly, whilst ways of enhancing the legitimacy of the Convention have been discussed, it could be argued that none of the participants possess a clear and specific mandate to negotiate a new fundamental treaty nor, for that matter, a constitution. Indeed, the very word ‘Convention’ refers (in the constitutional history of France, for instance) to a body specifically elected to draft a constitutional text, implying that the people cast their votes for representatives who stand up for a particular vision. This is advocated for instance by Eurotopia in its ‘Convention-Plus’ model, where half of the members of the Convention are directly elected ‘constitutional councillors’.

34. Thirdly, as it is highly dubious that Europe is ready for such a quantum leap, the legitimacy of the text must be better established after its adoption by the IGC. Referenda will be held in some Member States while in some countries, there is no tradition of referenda . Other countries should of course proceed according to their own rules. Where the choice exists , Member States should, of course, opt for a referendum, which is more commensurate with the importance of what is at stake, though some fierce resistance is to be expected from people fearing that the citizens could reject the Treaty that emerges from the IGC.

35. Whilst it may be prematureto think about this, the implications of a rejection of a new treaty in at least one Member State should be envisaged. The legal implications alone are daunting. Of course, the adoption of the treaty by a qualified majority of Member States (even 4/5) would drastically reduce the risk of blocking the new Treaty. Even though this solution is certainly not politically acceptable today, it should be borne in mind that no federal state exists where a single constituent part has a right of veto in constitutional matters.

36. The possibility of failure should lead to more reflection on possible alternatives – such as fields for enhanced cooperation. Such alternatives are discussed in the recent Lamy-Strauss Kahn article , and even if one disagrees with of choices made, innovative solutions should be sought.

For more in-depth analysis, see The European Policy Centre’s Challenge Europe:

The process leading to the IGC.