‘United Europe’: nomen est omen?

‘United Europe’: nomen est omen?

With his proposal for a new name for the enlarged and revamped Europe of the future, Valéry Giscard d’Estaing, president of the European Convention, is pointing to the core of one of the Convention’s most important issues: the question of the legal personality of the European Union – or whatever it may be called in future. It is a difficult undertaking to try to comprehend the present, highly complex treaties and understand where the differences lie when one speaks of the “European Community” or the “European Union”. Within the “three pillars” of the treaties – the single market, the common foreign and security policy, and justice and home affairs policy – the form of common cooperation and coordination among the member states varies greatly. One result of this structure is that neither the Community nor the Union can participate and be represented as one entity in international organisations, i.e. neither can speak with one voice.

In its last plenary session the Convention debated the topics “legal personality” and “subsidiarity” on the basis of results presented by the respective working groups. The creation of working groups was initially heavily criticised, but this procedure has two interesting aspects. First, a position that a working group has passed with a broad majority also has considerable dynamic in the Convention, without it being necessary to start another fundamental debate on the subject. Second, there are questions, at present unresolved, where the Convention can agree on an answer without the lack of an agreed decision-making procedure becoming an issue. This (successful) working method was initially viewed with great scepticism owing to the very unevenly balanced composition of the Convention.

In the question of the “legal personality” a large majority in the Convention favoured the termination of the three-pillar structure in the treaties and a merger in a new legal form. In the question of how to monitor the application of the subsidiarity principle in future, however, no predominant opinion emerged in either the working group or the plenary session. While this gives the Praesidium greater scope to make a reasonable proposal in the draft treaty, it makes it more difficult to assess whether the Praesidium proposal will then actually find broad acceptance in the Convention.

There are signs of a consensus emerging that the restructured treaty should be in two parts. If this view prevails, the Convention would, above all, have to make a clear statement in the first part of the treaty regarding the future division of roles and powers among the European institutions to ensure that this key issue does not become the subject of further negotiations in later intergovernmental conferences. So far, it is not possible to discern any clear position on the part of the Convention in the sensitive question of whether the political direction is to be determined mainly by the European Commission or by the European Council.

A decision will be crucial for the future, though. The European Commission could be headed by a president elected directly from the ranks of the European Parliament and it could also take over the remaining executive functions of the Council of Ministers. This model of a “European executive” would significantly increase the political weight of the European Commission in all policy areas of the present three-pillar structure. In combination with the systematic application of qualified-majority decision-making in the Council of Ministers, this would continue the “Community method” that has been used to date.

If, on the other hand, the suggestion – already propagated by several heads of state and government – to nominate a “president” from among their ranks to head the European Council were to prevail, this would presumably weaken the political influence of the European Commission in major area s and strengthen the tendency towards greater intergovernmental cooperation and multiple forms of interstate cooperation.

It appears that there will still be areas from the second and third pillars which are not included in Community policy (i.e. issues to be decided by qualified majority). Currently, there is the parallel practice of the “high representative for common foreign and security policy” on the Council side and the “external relations commissioner” on the Commission side. Here, in particular, a forward-looking solution has still to be found. The debate over the decision on which of the institutions should be responsible for this area illustrates the fundamental conflict between the goals of the “integrationalists” and those of the “intergovernmentalists”. For instance, the critics of the model of a single legal personality expressed misgivings on this very point: that under a treaty-based single superstructure there would likely be a development towards further integration in the areas of the second and third pillars.

Up to now, the Convention has engaged in much deliberation on the questions of the transparency and simplification of the treaties, without addressing the central problem of the distribution of power among the European institutions. An answer to this key question could emerge implicitly from the debate on the tasks assigned to the ten working groups. But it is also possible that the Convention may fail to submit a majority-winning proposal to the subsequent intergovernmental conference. In that case, the fact that no working group on institutions was formed could prove to have been a strategic lapse.

It will be very interesting to see the first indications given in the rough outline of the treaty structure which the Praesidium will present to the Convention at the meeting on October 28-29.

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